No. 25

UNITED STATES

V.

JOHNSON

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued November 10 and 15, 1965. Decided February 24, 1966.

Respondent, a former Congressman, was convicted on several counts of violating the conflict of interest statute (18 U.S.C. § 281) and on one count of conspiring to defraud the United States (18 U.S.C. § 371). The conspiracy charge involved an alleged agreement whereby respondent and another Congressman would attempt to influence the Justice Department to dismiss pending savings and loan company mail fraud indictments. As part of the conspiracy respondent allegedly delivered for pay a speech in Congress favorable to loan companies. The Government contended and adduced proof to show that the speech was delivered to serve private interests; that respondent was not acting in good faith; and that he did not prepare or deliver the speech as a Congressman would ordinarily do. The Court of Appeals set aside the conviction on the conspiracy count as being barred by Art. I, § 6, of the Constitution, providing that "for any Speech or Debate in either House" Senators and Representatives "shall not be questioned in any other Place," and ordered retrial on the substantive counts. Held:

1. The Speech or Debate Clause precludes judicial inquiry into the motivation for a Congressman's speech and prevents such a speech from being made the basis of a criminal charge against a Congressman for conspiracy to defraud the Government by

impeding the due discharge of its functions. Pp. 173-185.

(a) The Speech or Debate Clause, which emerged from the long struggle for parliamentary supremacy, embodies a privilege designed to protect members of the legislature against prosecution by a possibly unfriendly executive and conviction by a possibly hostile judiciary. Pp. 177-180.

(b) The privilege, which will be broadly construed to effectuate its purposes, Kilbourn v. Thompson, 103 U.S. 168; Tenney v. Brandhove, 341 U.S. 367, was created not primarily to avoid private suits as in those cases, but to prevent legislative intimidation by and accountability to the other branches of government. Pp. 180-182.

(c) The Speech or Debate Clause forecloses inquiry not only into the "content" of a congressional speech but into circumstances involving the motives for making it. Pp. 182-183.

(d) Prosecution under a general criminal statute involving inquiry into the motives for and circumstances surrounding a congressional speech is barred even though the gravamen of the offense is the alleged conspiracy rather than the speech itself. Pp. 184-185.

2. The Government is not precluded from retrying the conspiracy count as purged of all the elements offensive to the Speech or Debate Clause. P. 185.

3. This Court does not review the Court of Appeals' determination that the substantive counts be retried because of the prejudicial effect thereon resulting from the unconstitutional aspects of the conspiracy count since the Government does not dispute that determination in this proceeding. Pp. 185-186.

337 F. 2d 180, affirmed and remanded.

Beatrice Rosenberg argued the cause for the United States. With her on the briefs were Solicitor General Marshall, Assistant Attorney General Vinson, Ralph S. Spritzer and Jerome M. Feit.

George Cochran Doub and David W. Louisell argued the cause and filed a brief for respondent.

Eugene Gressman and Edward L. Genn filed a brief for J. Kenneth Edlin, as amicus curiae, urging affir

mance.

MR. JUSTICE HARLAN delivered the opinion of the Court.

Respondent Johnson, a former United States Congressman, was indicted and convicted on seven counts of violating the federal conflict of interest statute, 18 U.S.C. § 281 (1964 ed.),1 and on one count of conspiring to defraud the United States, 18 U.S.C. § 371 (1964 ed.).2 The Court of Appeals for the Fourth Circuit set aside the conviction on the conspiracy count, 337 F. 2d 180, holding that the Government's allegation that Johnson had conspired to make a speech for compensation on the floor of the House of Representatives was barred by Art. I, § 6, of the Federal Constitution which provides that "for any speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." The Court of Appeals ordered a new trial on the other counts, having found that the evidence adduced under the unconstitutional aspects of the conspiracy count had infected the entire prosection.

1"Whoever, being a Member of or Delegate to Congress, . . . directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim, controversy, charges accusation, arrest, or other matter in which the United States is a party or directly or indirectly interested, before any department, agency, court martial, officer, or any civil, military, or naval commission, shall be fined not more than $10,000 or imprisoned not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States."

2"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both."

The conspiracy of which Johnson and his three codefendants were found guilty consisted, in broad outline, of an agreement among Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin and William L. Robinson who were connected with a Maryland savings and loan institution, whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges. It was futher claimed that as a part of this general scheme Johnson read a speech favorable to independent savings and loan associations in the House, and that the company distributed copies to allay apprehensions of potential depositors. The Two Congressmen approached the Attorney General and the Assistant Attorney General in charge of the Criminal Division and urged them "to review" the indictment. For these services Johnson received substantial sums in the form of a "campaign contribution" and "legal fees." The Government contended, and presumably the jury found, that these payments were never disclosed to the Department of Justice, and that the payments were not bona fide campaign contributions or legal fees, but were made simply to "buy" the Congressman.

The bulk of the evidence submitted as to Johnson dealt with his financial transactions with the other conspirators, and with his activities in the Department of Justice. As to these aspects of the substantive counts and the conspiracy count, no substantial question is before us. 18 U.S.C. § 371 has long been held to encompass not only conspiracies that might involve loss of government funds, but also "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Haas v. Henkel, 216 U.S. 462, 479. No argument is made, nor do we think that it could be successfully contended, that the speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no way related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly

motivated speech that raises the constitutional problem with which we deal.3

I.

The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial. Extensive questioning went on concerning how much of the speech was written by Johnson himself, how much by his administrative assistant, and how much by outsiders representing the loan company. The government attorney asked Johnson specifically about certain sentences in the speech, the reasons for their inclusion and his personal knowledge of the factual ma

3

Only the question of the applicability of the Speech or Debate Clause to the prosecution of Johnson is before us. The Court of Appeals affirmed the convictions of co-defendants Edlin and Robinson whose appeals were consolidated with that of Johnson and, except for a brief as amicus curiae submitted by Edlin, questions raised in those cases have not been presented to us. The defendant Boykin took no appeal from his conviction.

4 See direct examination by the prosecution of Martin Heflin, App. 182-191, esp. 189-190:

"Q. What, if anything, did Congressman Johnson do with the material which Mr. Robinson brought in and gave to him? A. As I recall, Mr. Johnson said that his administrative

assistant

would go over the material, too and if I am not mistaken, Mr. Johnson called him in and Buarque took the material and I left the office with Mr. Buarque to discuss it some more.

"Q. After that meeting did you at any time thereafter have any contact either with Congressman Johnson or his office with regard to the speech? A. I telephoned a time or two there and I think I was called by Mr. Buarque and asked him about certain figures that the Institute-background material that might be supplied, and I did supply additional material and I believe Mr. Buarque sent me a draft, himself, with certain places, blank places for figures to be filled in. We had a discussion about some of the technical phases [sic] and information, statistical information and so forth.

"Q. You supplied some of the facts and figures for the draft that Mr. Buarque sent you? A. Yes.

"Q. What did you do with that draft once you had looked it over? A. Returned it."

See also cross-examination of Manual Buarque, App. 488-494; cross-examination of co-defendant Robinson, App. 772-775; crossexamination of defendant Johnson, Transcript 79-93.