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note in its reply brief, it did not so argue in this Court; on the contrary it stated in oral argument that it stood solely on its position with reference to the conspiracy count.16 In these circumstances we find no occasion to review the Court of Appeals' assessment of the record in this respect.
For the foregoing reasons we affirm the judgment of the Court of Appeals and remand the case to the District Court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE BLACK took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE WARREN, and with whom Mr. Justice Douglas and Mr. Justice Brennan join, concurring in part and dissenting in part.
I concur in the limited holding of the Court that the use of the Congressman's speech during this particular trial—with an examination into its authorship, motivation and content-was violative of the Speech or Debate
16 In oral argument, government counsel stated as follows:
"And so the question that we brought to the Court, and the only question that we think is properly involved in this case now, revolves around the taking of money to give a speech on the floor of Congress."
Question from the Bench: “Well, was there [to be] a new trial on the other phase of it?”
Government Counsel: "It [the Court of Appeals) ordered a new trial on the other phase. And we have not brought that issue here. We reserved it in our petition but we did not argue it, I might say largely because it cannot be determined without reading the whole record. The question in this case which we did bring here, and which we think is the question involved, is this: Article 1, Section 6, of the Constitution provides that for any speech or debate in either House, no member of Congress shall be questioned in any other place. And as we view it, the question is, does that Speech or Debate Clause mean that Congress is without power under the Constitution to make it a crime triable in court for a Congressman to take money to make a speech?”
Clause. I also join the Court in its remand of the conspiracy count for a new trial, this time purged of offensive matter. The Court's refusal to decide the validity of the conviction under the seven substantive counts, however, prompts me to dissent. In my view, the conflict of interest counts are properly before us, raise important questions and should be resolved now since the respondent will probably raise these issues on his forthcoming reprosecution.
The Court explains its refusal to reach the substantive counts by referring to a single statement made by the Government's counsel at the outset of oral argument, p. 186, n. 16, ante. In the same colloquy, the Government remarked that it did not consider the issues raised by the substantive counts to be of general importance, and felt that the question of the effect of the tainted evidence on these counts would unavoidably require an examination, of the entire 1,300-page record. Prior to oral argument, the Government had argued these issues exhaustively in the Court of Appeals, and had mentioned them in its petition for certiorari in compliance with Supreme Court Rule 40(1)(d) (1) and (2), and in its reply brief on the merits. Both in its reply brief and later in oral argument, in answer to inquiries from the Bench, it contended that the evidence, arguments and instructions on the conspiracy count were distinct from the substantive counts. At best, then, the Government's position is ambiguous, if not puzzling.1
1 I confess to some surprise that the Government almost abandoned these issues when in this Court, even though the major question in the case is the application of the Speech or Debate Clause. In the first place, this Court has not had occasion to deal with the conflict of interest statutes as applied to a Member of Congress since 1906, Burton v. United States, 202 U.S. 344, and they remain viable although lately revised, see Manning, Federal Conflict of Interest Law 14-73 (1964). Moreover, the Government itself has argued strenuously and successfully in many cases that an erroneous conviction on one count does not vitiate a conviction on other counts, especially where concurrent sentences are involved, see, e.g., United States v. Romano, 382 U.S. 136; United States v. Gainey, 380 U.S. 63, 65; Sinclair v. United States, 279 U.S.
Beyond that, the respondent himself specifically urged this Court to consider the issues in his brief on the merits, pp. 100-101 and n. 86, devoted 33 pages of argument to this phase of the case and addressed himself to the questions on oral argument. Under these unique circumstances, I think it is our duty carefully to scrutinize all the facts and issues involved in the prosecution.
After reading the record, it is my conclusion that the Court of Appeals erred in determining that the evidence concerning the speech infected the jury's judgment on the substantive counts. The evidence amply supports the prosecution's theory and the jury's verdict on these counts—that the respondent received over $20,000 for attempting to have the Justice Department dismiss an indictment against his co-conspirators, without disclosing his role in the enterprise. This is the classic example of a violation of $ 281 by a Member of the Congress. 2 See May v. United States, 175 F. 2d 994, 1006 (C. A. D. C. Cir.); United States v. Booth, 148 F. 112, 117 (Cir. Ct. D. Ore.). The arguments of government counsel and the court's instructions separating the conspiracy from the substantive counts seem unimpeachable. The speech was a minor part of the prosecution. There was nothing in it to inflame the jury and the respondent pointed with pride to it as evidence of his vigilance in protecting the financial institutions of his State. The record further reveals that the trial participants were well aware that a finding of criminality on one count did not authorize similar conclusions as to other counts, and I believe that this salutary principle was conscientiously followed. Therefore, I would affirm the convictions on the substantive counts.
263, 299; Barnard v. United States, 342 F. 2d 309 (C. A. 9th Cir.), certiorari denied, 382 U.S. 948. There are, in addition, numerous cases in which the issue was raised in this Court and the petitioner-defendant was denied certiorari.
2 The sentence given was lenient-six months on each count, but all to run concurrently. The conspiracy statute, 18 U.S.C. $ 371, authorizes a five-year prison term and a $10,000 fine, and the conflict of interest statute in effect at the trial permitted a twoyear sentence and a $10,000 fine for each violation, 18 U.S.C. & 281. No. 118
DOMBROWSKI ET AL.
EASTLAND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 1967. Decided May 15, 1967. Petitioners claim that respondents, Chairman of the Internal Security Subcommittee of the U.S. Senate Judiciary Committee and the Subcommittee's chief counsel, tortiously entered into and participated in a conspiracy with Louisiana officials to seize petitioners' property and records in violation of the Fourth Amendment. Louisiana courts held the arrests and searches illegal. Here, the court below, while recognizing difficulty in concluding that there were no disputed issues of fact respecting petitioners' claim, upheld summary dismissal of the action on the ground of respondents' legislative immunity. Held: Since there is no evidence of the respondent Chairman's “involvement in any activity that could result in liability,” the complaint as to him was properly dismissed. The doctrine of legislative immunity protects “legislators engaged ‘in the sphere of legitimate legislative activity,' not only from the consequences of litigation's results but also from the burden of defending themselves.” However, the doctrine of legislative immunity is less absolute when applied to officers or employees of legislative bodies. There is a sufficient factual dispute with respect to the alleged participation in the conspiracy of the subcommittee's chief counsel to require that a trial be had. The legal consequences of such participation, if it occurred, cannot be determined prior to the factual refinement of
trial. The judgment below is therefore reversed as to the subcommittee's chief counsel.
123 U.S. App. D.C. 190, 358 F. 2d 821, affirmed in part and reversed and remanded in part.
Arthur Kinoy argued the cause for petitioners. With him on the brief was William M. Kunstler.
Roger Robb argued the cause for respondents. With him on the brief were Solicitor General Marshall, Assistant Attorney General Sanders and David L. Rose.
The Court of Appeals for the District of Columbia Circuit sustained the order granting summary judgment to the respondents who are, respectively, the Chairman and counsel of the Internal Security Subcommittee of the Judiciary Committee of the United States Senate. Petitioners' claim is essentially that respondents tortiously entered into and participated in a conspiracy and concert of action with Louisiana officials to seize property and records of petitioners by unlawful means in violation of petitioners' Fourth Amendment rights. The circumstances of the searches and arrests involved are set forth in Dombrowski v. Pfister, 380 U.S. 479 (1965), and in Judge Wisdom's dissenting opinion in the District Court in that case, 227 F. Supp. 556, 573 (D.C.E.D. La. 1964). Louisiana courts held the arrests and searches illegal because the warrants secured by the police had not been supported by a showing of probable cause. In a civil suit by these same petitioners against the Louisiana officials allegedly involved in the conspiracy, the Court of Appeals for the Fifth Circuit, reversing a summary judgment in favor of third-party defendants, held that plaintiffs had raised a genuine issue of material fact whether the Chairman "and the other members of the [State] Committee were 'acting in the sphere of legitimate legislative activity,' which would entitle them to immunity.” Pfister v. Arceneaux, 376 F. 2d 821.
In the present case, the court below recognized “considerable difficulty” in reaching the conclusion that, on