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The Wason court clearly refused to distinguish between promise and performance; the legislative privilege applied to both. Mr. Justice Harlan, writing for the Court in Johnson, took no issue with this position. Indeed, he indicated that the Speech or Debate Clause barred any prosecution under a general statute where there is drawn in question "the legislative acts of ... the member of Congress or his motives for performing them.” 383 U.S., at 185 (emphasis added). I find it difficult to believe that under the statute there involved the Johnson Court would have permitted a prosecution based upon a promise to perform a legislative act.
Because it gives a begrudging interpretation to the clause, the majority finds it can avoid dealing with the position upon which the Government placed principal reliance in its brief in this Court. Johnson put aside the question whether an otherwise impermissible prosecution conducted pursuant to a statute such as we now have before us-a statute specifically including congressional conduct and purporting to be an exercise of congressional power to discipline its Members—would be consistent with the Speech or Debate Clause. As must be apparent from what so far has been said, I am convinced that such a statute contravenes the letter and purpose of the Clause. True, Congress itself has defined the crime and specifically delegated to the Executive the discretion to prosecute and to the courts the power to try. Nonetheless, I fail to understand how a majority of Congress can bind an objecting Congressman to a course so clearly at odds with the constitutional command that legislative conduct shall be subject to question in no place other than the Senate or the House of Representatives. The Speech or Debate Clause is an allocation of power. It authorizes Congress to call offending members to account in their appropriate Houses. A statute that represents an abdication of that power is in my view impermissible.
I return to the beginning. The Speech or Debate Clause does not immunize corrupt Congressmen. It reserves the power to discipline in the House of Congress. I would insist that those Houses develop their own institutions and procedures for dealing with those in their midst who would prostitute the legislative process.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
Argued April 19-20, 1972. Decided June 29, 1972. * A United States Senator read to a subcommittee from classified documents (the Pentagon Papers), which he then placed in the public record. The press reported that the Senator had arranged for private publication of the Papers. A grand jury investigating whether violations of federal law were implicated subpoenaed an aide to the Senator. The Senator, as an intervenor, moved to quash the subpoena, contending that it would violate the Speech or Debate Clause to compel the aide to testify. The District Court denied the motion but limited the questioning of the aide. The Court of Appeals affirmed the denial but modified the protective order, ruling that congressional aides and other persons may not be questioned regarding legislative acts and that, though the private publication was not constitutionally protected, a common-law privilege similar to the privilege of protecting executive officials from liability for libel, see Barr v. Matteo, 360 U.S. 564, barred questioning the aide concerning such publication. Held:
1. The Speech or Debate Clause applies not only to a Member of Congress but also to his aide, insofar as the aide's conduct would be a protected legislative act if performed by the Member himself. Kilbourn v. Thompson, 103 U.S. 168; Dombrowski v.
*Together with No. 71-1026, United States v. Gravel, also on certiorari to the same court.
Eastland, 387 U.S. 82; and Powell v. McCormack, 395 U.S. 486, distinguished. Pp. 613-622.
2. The Speech or Debate or Debate Clause does not extend immunity to the Senator's aide from testifying before the grand jury about the alleged arrangement for private publication of the Pentagon Papers, as such publication had no connection with the legislative process. Pp. 622-627.
3. The aide, similarly, had no nonconstitutional testimonial privilege from being questioned by the grand jury in connection with its inquiry into whether private publication of the Papers violated federal law. P. 627.
4. The Court of Appeals' protective order was overly broad in enjoining interrogation of the aide with respect to any act, “in the broadest sense, that he performed within the scope of his employment, since the aide's immunity extended only to legislative acts as to which the Senator would be immune. And the aide may be questioned by the grand jury about the source of classified documents in the Senator's possession, as long as the questioning implicates no legislative act. The order in other respects would suffice if it forbade questioning the aide or others about the conduct or motives of the Senator or his aides at the subcommittee meeting; communications between the Senator and his aides relating to that meeting or any legislative act of the Senator; or steps of the Senator or his aides preparatory for the meeting, if not relevant to third
party crimes. Pp. 627-629. 455 F. 2d 753, vacated and remanded.
WHITE, J., wrote the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Stewart, J., filed an opinion, dissenting in part, post, p. 629. Douglas, J., filed a dissenting opinion, post, p. 633. Brennan, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 648.
Robert J. Reinstein and Charles L. Fishman argued the cause for petitioner in No. 71-1017 and for respond
ent in No. 71-1026. With them on the briefs were Harvey A. Silverglate and Alan M. Dershowitz.
Solicitor General Griswold argued the cause for the United States in both cases. With him on the briefs were Assistant Attorney General Mardian, Jerome M. Feit, Allan A. Tuttle, and Robert L. Keuch.
Sam J. Ervin, Jr., and William B. Saxbe argued the cause for the Senate of the United States as amicus curiae. With them on the brief were James O. Eastland, John 0. Pastore, Herman E. Talmadge, Norris Cotton, Peter H. Dominick, Charles McC. Mathias, Jr., Philip B. Kurland, and Edward I. Rothschild.
Briefs of amici curiae were filed by Melvin L. Wulf and Sanford Jay Rosen for the American Civil Liberties Union; by Frank B. Frederick and Henry Paul Monaghan for the Unitarian Universalist Association; and by Morton Stavis and Doris Peterson for Leonard S. Rodberg.
Opinion of the Court by Mr. Justice White, announced by Mr. Justice Blackmun.
These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret Sensitive. The crimes being investigated included the retention of public property or records with intent to convert (18 U.S.C. § 641), the gathering and transmitting of national defense information (18 U.S.C. § 793), the concealment or removal of public records or documents (18 U.S.C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U.S.C. $ 371).
Among the witnesses subpoenaed were Leonard S. Rodberg, an assistant to Senator Mike Gravel of Alaska and a resident fellow at the Institute of Policy Studies, and Howard Webber, Director of M.I.T. Press. Senator
Gravel, as intervenor,1 filed motions to quash the subpoenas and to require the Government to specify the particular questions to be addressed to Rodberg.2 He asserted that requiring these witnesses to appear and testify would violate his privilege under the Speech or Debate Clause of the United States Constitution, Art, I, § 6, cl. 1.
It appeared that on the night of June 29, 1971, Senator Gravel, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator's staff earlier in the day and assisted Gravel in preparing for and conducting the hearing.3 Some weeks
1 The District Court permitted Senator Gravel to intervene in the proceeding on Dr. Rodberg's motion to quash the subpoena ordering his appearance before the grand jury and accepted motions from Gravel to quash the subpoena and to specify the exact nature of the questions to be asked Rodberg. The Government contested Gravel's standing to appeal the trial court's disposition of these motions on the ground that, had the subpoena been directed to the Senator, he could not have appealed from a denial of a motion to quash without first refusing to comply with the subpoena and being held in contempt. United States v. Ryan, 402 U.S. 530 (1971); Cobbledick v. United States, 309 U.S. 323 (1940). The Court of Appeals, United States v. Doe, 455 F. 2d 753, 756-757 (CA1 1972), held that because the subpoena was directed to third parties, who could not be counted on to risk contempt to protect intervenor's rights, Gravel might be "powerless to avert the mischief of the order" if not permitted to appeal, citing Perlman v. United States, 247 U.S. 7, 13 (1918). The United States does not here challenge the propriety of the appeal.
2 Dr. Rodberg, who filed his own motion to quash the subpoena directing his appearance and testimony, appeared as amicus curiae both in the Court of Appeals and this court. Technically, Rodberg states, he is a party to No. 71-1026, insofar as the Government appeals from the protective order entered by the District Court. However, since Gravel intervened, Rodberg does not press the point. Brief of Leonard S. Rodberg as Amicus Curiae 2 n. 2.
3 The District Court found that ‘as personal assistant to movant [Gravel], Dr. Rodberg assisted movant in preparing for disclosure and subsequently disclosing to movant's colleagues and constituents, at a hearing of the Senate Subcommittee on Public Buildings and Grounds, the contents of the so-called "Pentagon Papers,