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whom he received them, may not be the subject of inquiry by the grand jury.
I would go further, however, and also exclude from grand jury inquiry any knowledge that the Senator or his aides might have concerning how the source himself first came to possess the Papers. This immunity, it seems to me, is essential to the performance of the informing function. Corrupt and deceitful officers of government do not often post for public examination the evidence of their own misdeeds. That evidence must be ferreted out, and often is, by fellow employees and subordinates. Their willingness to reveal that information and spark congressional inquiry may well depend on assurances from their contact in Congress that their identities and means of obtaining the evidence will be held in strictest confidence. To permit the grand jury to frustrate that expectation through an inquiry of the Congressman and his aides can only dampen the flow of information to the Congress and thus to the American people. There is a similar risk, of course, when the Member's own House requires him to break the confidence. But the danger, it seems to me, is far less if the Member's colleagues, and not an “unfriendly executive" or "hostile judiciary,” are charged with evaluating the propriety of his conduct. In any event, assuming that a Congressman can be required to reveal the sources of his information and the methods used to obtain that information, that power of inquiry, as required by the Clause, is that of the Congressman's House, and of that House only.
I respectfully dissent.
61-795 0 - 81 - 27
DOE ET AL.
MCMILLAN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 1972. Decided May 29, 1973. Petitioners, parents of District of Columbia (D.C.) school children, brought this action seeking damages and declaratory and injunctive relief for invasion of privacy that they claimed resulted from the dissemination of a congressional report on the D.C. school system that included identification of students in derogatory contexts. The named defendants included members of a House committee, Committee employees, a Committee investigator, and a consultant; the Public Printer and the Superintendent of Documents; and officials and employees connected with the school system. The Court of Appeals affirmed the District Court's dismissal of the complaint on the grounds that the first two categories of defendants were immune by reason of the Speech or Debate Clause, and that the D.C. officials and the legislative employees were protected by the official immunity doctrine recognized in Barr v. Matteo, 360 U.S. 564. Held:
1. The congressional committee members, members of their staff, the consultant, and the investigator are absolutely immune under the Speech or Debate Clause insofar as they engaged in the legislative acts of compiling the report, referring it to the House, or voting for its publication. Pp. 311313.
2. The Clause does not afford absolute immunity from private suit to persons who, with authorization from Congress, perform the function, which is not part of the legislative process, of publicly distributing materials that allegedly infringe upon the rights of individuals. The Court of Appeals, therefore, erred in holding that respondents who (except for the Committee members and personnel) were charged with such public distribution were protected by the Clause. Pp. 313-318.
3. The Public Printer and the Superintendent of Documents are protected by the doctrine of official immunity enunciated in Barr v. Matteo, supra, for publishing and distributing the report only to the extent that they served legitimate legislative functions in doing so, and the Court of Appeals erred in holding that their immunity extended beyond that
limit. Pp. 318–324. 148 U.S. App. D.C. 280, 459 F. 2d 1304, reversed in part, affirmed in part, and remanded.
WHITE, J., delivered the opinion of the Court, in which Douglas, Brennan, Marshall, and Powell, JJ., Joined. Douglas, J., filed a concurring opinion, in which Brennan and Marshall, JJ., joined, post, p. 325. Burger, C.J., filed an opinion concurring in part and dissenting in part, post, p. 331. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Burger, C.J., joined, post, p. 332. Rehnquist, J., filed an opinion concurring in part and dissenting in part, in which Burger, C.J., and Blackmun, J., joined, and in Part I of which Stewart, J., joined, post, p. 338.
Michael J. Valder argued the cause for petitioners. With him on the brief was Jean Camper Cahn.
Fred M. Vinson, Jr., and William C. Cramer argued the cause for the Legislative respondents. With them on the brief were Robert S. Erdahl, James S. Rubin, Richard M. Haber, Benton L. Becker, and Walter C. DeVaughn. David P. Sutton argued the cause for the District of Columbia respondents. With him on the brief were C. Francis Murphy and Richard W. Barton.
MR. JUSTICE WHITE delivered the opinion of the Court.
This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, 360 U.S. 564 (1959); Tenney v. Brandhove, 341 U.S. 367 (1951).
By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of ... the organization, management, operation, and administration” of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to “report to the House as soon as practicable ... the results of its investigation and study together with such recommendations as it deems advisable.” On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H.R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S.C. 88 501 and 701.
The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students. The report stated
1 The Court of Appeals' opinion terms the materials "somewhat derogatory." The absentee lists named students who were frequent