In his motion, the Clerk asserted that the subpoena, by calling for five years of records, failed to meet applicable standards of relevancy and materiality. This was particularly true, the Clerk contended, since the Government's public statements concerning the scope of the ABSCAM investigation (in furtherance of which the records were subpoenaed) indicated that the investigation commenced only one and one-half years prior to the issuance of the subpoena. In addition, the Clerk argued that subpoenas for non-public internal records of a coordinate branch required a particularized showing of need which had not been made.

The U.S. Attorney opposed the Clerk's motion to quash, aruging that a sufficient showing of relevancy had been made. The Government argued that the fact that evidence being sought predated the initial investigation did not preclude the subpoena, since predisposition was an issue in the investigation.

On June 13, 1980, the district court issued a memorandum and order on the motions of the Clerk and Rep. Kelly to quash the subpoena. The court found that the in camera determination of relevancy at the time the subpoena was issued was sufficient to overcome the concerns of the Clerk. With respect to the claims by Rep. Kelly regarding the Speech or Debate Clause, the court concluded that document by document consideration was required. The court ordered a Vaughn index 2 for all subpoenaed travel reimbursement and telephone records.

On July 3, 1980, the court issued another memorandum and order in response to an earlier motion by Rep. Kelly to amend the June 13 order. Rep. Kelly had claimed that a Vaughn index which listed factual circumstances would disclose more information than was contained on the face of the documents themselves, and would compromise the confidentiality required by the Speech or Debate Clause. The court held that the Speech or Debate Clanse protected Rep. Kelly from use of protected material, not from confidentiality. The order to submit a Vaughn index was not amended.

On July 15, 1980, Rep. Kelly was indicted and further proceedings on this matter were suspended.

Status.-The case is closed.

United States ex rel. Joseph v. Cannon

No. 78-1618 (D.C. Cir.)

On March 15, 1977, Joel D. Joseph, a private citizen, filed suit in the U.S. District Court for the District of Columbia against U.S. Senator Howard Cannon of Nevada and Chester B. Sobsey, the Senator's administrative assistant, under 31 U.S.C. §§ 231 and 232 (the False Claims Act). The complaint alleged that from March 1975 to November 1976 defendant Sobsey worked extensively and exclusively on Senator Cannon's re-election campaign or on related tasks not part of the Senator's official duties, and that during this period Senator Cannon knowingly authorized, and Mr. Sobsey knowingly accepted, regular pay for services ostensibly performed as administrative assist

2 Under Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973) cert. denied, 415 U.S. 977, all material claimed to be privileged must be indexed in "relatively detailed analysis in manageable segments" so that a court can gauge the applicability of the Speech or Debate Clause to the documents at issue.

On December 30, 1980, the defendants moved the court to grant their December 4, 1980 motion to dismiss because of the plaintiffs' failure to file any opposition to the motion within the time provided by Local Rule 1-9 (d), to wit, 10 days.

On January 5, 1981, the court dismissed the case with prejudice. Status-The case is closed.

In Re: Possible Violations of 18 U.S.C. §§ 201,371

Misc. No. 80-118 (D.D.C.)

On May 7, 1980, the U.S. Attorney for the District of Columbia requested that a subpoena duces tecum be issued to the Clerk of the House of Representatives for the production of any "documents pertaining to any reimbursement to Congressman Richard Kelly for expenses for travel, lodging, or meals while traveling to, from, or within the Fifth Congressional District of Florida and while on official business for the period of January 1975 to the present." The following day, the U.S. District Court for the District of Columbia reviewed submissions by the U.S. Attorney's office in an in camera proceeding and found that the materials sought by the subpoena were necessary, material, and relevant to a pending grand jury investigation. The court then authorized the issuance of the subpoena.

On May 12, 1980, a subpoena duces tecum was served on the Clerk, who, on May 19, moved to quash or modify it based on the ground that the material sought was not relevant, and that a subpoena to a cocrdinate branch of Government required a particularized showing of relevancy. On May 29, 1980, Rep. Kelly sought to intervene and quash the subpoena on the additional ground that the records were protected by the Speech or Debate Clause.' In addition, Rep. Kelly sought to make the proceedings public and to unseal the record.

On June 10, 1980, the court ordered all the documents filed in the case unsealed, except for the Government's documents which had been reviewed in camera.

On June 11, 1980, Rep. Kelly's motion to intervene was granted. On the same day the Government filed a motion in opposition to Rep. Kelly's motion to quash or modify the subpoena. The Government objected to Rep. Kelly's attempt to litigate on Speech or Debate grounds the Government's right to subpoena documents in the possession of a third party, the Clerk of the House, without making any effort to prove that the documents would be protected. The Government argued that whether a trip to a home district was for political, legislative or other reasons was best known to the Congressman. Relying on In Re: Grand Jury Investigation (Eilberg), 587 F.2d 589 (3rd Cir. 1978), the Government asserted that Rep. Kelly had the burden of going forward and proving by a preponderance of the evidence that the records.sought were protected by the Speech or Debate Clause.

Also on June 11th, the Clerk submitted a motion and brief to quash or modify the subpoena. The Clerk addressed the issue of the scope and breadth of the subpoena, deferring questions concerning the application of the Speech or Debate Clause.

1 The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1.]

In his motion, the Clerk asserted that the subpoena, by calling for five years of records, failed to meet applicable standards of relevancy and materiality. This was particularly true, the Clerk contended, since the Government's public statements concerning the scope of the ABSCAM investigation (in furtherance of which the records were subpoenaed) indicated that the investigation commenced only one and one-half years prior to the issuance of the subpoena. In addition, the Clerk argued that subpoenas for non-public internal records of a coordinate branch required a particularized showing of need which had not been made.

The U.S. Attorney opposed the Clerk's motion to quash, aruging that a sufficient showing of relevancy had been made. The Government argued that the fact that evidence being sought predated the initial investigation did not preclude the subpoena, since predisposition was an issue in the investigation.

On June 13, 1980, the district court issued a memorandum and order on the motions of the Clerk and Rep. Kelly to quash the subpoena. The court found that the in camera determination of relevancy at the time the subpoena was issued was sufficient to overcome the concerns of the Clerk. With respect to the claims by Rep. Kelly regarding the Speech or Debate Clause, the court concluded that document by document consideration was required. The court ordered a Vaughn index 2 for all subpoenaed travel reimbursement and telephone records.

On July 3, 1980, the court issued another memorandum and order in response to an earlier motion by Rep. Kelly to amend the June 13 order. Rep. Kelly had claimed that a Vaughn index which listed factual circumstances would disclose more information than was contained on the face of the documents themselves, and would compromise the confidentiality required by the Speech or Debate Clause. The court held that the Speech or Debate Clause protected Rep. Kelly from use of protected material, not from confidentiality. The order to submit a Vaughn index was not amended.

On July 15, 1980, Rep. Kelly was indicted and further proceedings on this matter were suspended.

Status.-The case is closed.

United States ex rel. Joseph v. Cannon

No. 78-1618 (D.C. Cir.)

On March 15, 1977, Joel D. Joseph, a private citizen, filed suit in the U.S. District Court for the District of Columbia against U.S. Senator Howard Cannon of Nevada and Chester B. Sobsey, the Senator's administrative assistant, under 31 U.S.C. §§ 231 and 232 (the False Claims Act). The complaint alleged that from March 1975 to November 1976 defendant Sobsey worked extensively and exclusively on Senator Cannon's re-election campaign or on related tasks not part of the Senator's official duties, and that during this period Senator Cannon knowingly authorized, and Mr. Sobsey knowingly accepted, regular pay for services ostensibly performed as administrative assist

2 Under Vaughn v. Rosen, 484 F. 2d 820 (D.C. Cir. 1973) cert. denied, 415 U.S. 977, all material claimed to be privileged must be indexed in "relatively detailed analysis in manageable segments" so that a court can gauge the applicability of the Speech or Debate Clause to the documents at issue.

ant, although such services were not performed or were done in a "perfunctory or nominal manner." [Complaint, March 15, 1977, at 3] The complaint further alleged that during the relevant period, and at other times, Senator Cannon had other members of his staff "perform services to him and his family, which were not part of Senator Cannon's official legislative and representational duties, but were nevertheless paid with public funds." [Id.]

Sections 231 and 232 allow a private citizen to file a claim on behalf of the United States against any person making a false claim for money upon the United States. Anyone convicted under section 231 shall pay $2,000, plus double the amount of damages the United States may have suffered as a result of the false claims, as well as the costs. of the suit. Under section 232 the "relator" is required to notify the Justice Department of the suit and the Department is then allowed 60 days in which to take over the case. If an appearance is entered by the Government, the private citizen may be awarded fair and reasonable compensation, in amount not exceeding one-tenth of the amount recovered, for disclosure of information or evidence not in the possession of the United States when the suit was brought. If the case is not taken over by the Government, the relator may be awarded up to one-fourth of the amount recovered as compensation for his services. On May 27, 1977, the Justice Department declined to enter an appearance on behalf of the United States.

On June 7, 1977, the defendants filed a motion to dismiss the complaint.

On May 25, 1978, District Court Judge Bryant filed a memorandum and order granting the motion of the defendants to dismiss the action. [United States ex rel. Joseph v. Cannon, Civil Action No. 77-0452 (D.D.C. May 25, 1978)] The court found that it had no jurisdiction. under the terms of the False Claims Act, since that act denies jurisdiction over private false claims if the evidence or information on which the suit is based was already in the possession of the Government. This was so in the instant case since Senator Cannon had, pursuant to Senate Rule 43, notified the Secretary of the Senate that Mr. Sobsey was an aide authorized to receive and distribute campaign contributions.1

In regard to the claim of fraud, Judge Bryant held that the plaintiff had failed to state a claim upon which relief could be granted since he had not identified one specific instance in which a member of Senator Cannon's personal staff was paid out of public funds for personal tasks.

Mr. Joseph filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit on May 26, 1978.

The court of appeals issued its opinion on January 30, 1981. [United States ex rel. Joseph v. Cannon, 642 F.2d 1373 (D.C. Cir. 1981)] Regarding the authorization of salary payments to Mr. Sobsey

1 In 1969, when Senator Cannon made his filing under Senate Rule 43, the Rule read: No officer or employee whose salary is paid by the Senate may receive, solicit, be the custodian of, or distribute any funds in connection with any campaign for the nomination for election, or the election of any individual to be a Member of the Senate or to any other Federal office. This prohibition does not apply to any assistant to a Senator who has been designated by that Senator to perform any of the functions described in the first sentence of this paragraph and who is compensated at a rate in excess of $10,000 per annum if such designation has been made in writing and filed with the Secretary of the Senate. The Secretary of the Senate shall make the designation available for public inspection.

while he was not performing official legislative and representational duties, the court upheld the district court's dismissal, but on different grounds. The court ruled that merely because the Government held some information related to an allegedly false claim, it did not mean that a suit under the False Claims Act was barred:

To require that the evidence and information possessed by the United States be a mirror image of that in the hands of the qui tam plaintiff would virtually eliminate the bar. On the other hand, to permit the bar to be invoked when the United States possesses only rumors while the qui tam plaintiff has evidence and information would be to permit the bar to repeal effectively much of the False Claims Act. Between these extremes lies the answer.

More precisely, the answer rests in that area where it is possible to say that the evidence and information in the possession of the United States at the time the False Claims Act suit was brought was sufficient to enable it adequately to investigate the case and to make a decision whether to prosecute. [642 F.2d at 1377, quoting Pettis ex rel. United States v. Morrison Knudson Co., 577 F. 2d 668, 674 (9th Cir. 1978)]

The more pertinent question, the court said, was whether the evidence conveyed to the Secretary of the Senate under Rule 43 could form the basis for a Government decision to prosecute, or at least alert law-enforcement authorities to the likelihood of wrongdoing.

In reviewing the apparent factual situation, the court found the information filed by Senator Cannon under Rule 43 had revealed only that Mr. Sobsey was authorized to solicit and handle campaign contributions. "And because Sobsey could have discharged this function without neglecting his official duties," said the court, "the Rule 43 filing by itself cannot be deemed to have adequately informed the Government of possible wrongdoing by either Senator Cannon or his aide." [Id. at 1378] The court concluded that since the Rule 43 filing did not adequately inform the Government of possible wrongdoing, the district court improperly predicated its dismissal on the fact that a Rule 43 filing had been made.

The court then turned to the issue of the justiciability of the plaintiff's allegations. The court recognized the functional limitations on the ability of the judiciary to deal with certain types of problems. Constitutionally, said the court, Federal courts may decide only cases and controversies, and although these terms cannot be described precisely, the court would not consider a matter that was not appropriate to judicial resolution. The court of appeals stated that the issue of justiciability went to both inherent limitations on the capabilities of judicial tribunals, as well as to the doctrine of separation of powers. The court reasoned that political questions were not subject to judicial review for two reasons: (1) courts would be intruding into the jurisdiction of coordinate branches of Government; and (2) courts are not equipped to formulate national policy or develop standards of conduct that are not legal in nature. "A challenge to the interworkings of a Senator and his staff member raises at the onset the specter that such a question lurks." [Id. at 1379]