the Ethics Committee is protected by the Speech or Debate
Clause.

Finally, the argument that the defendant's testimony
before the Ethics Committee should be available to the
government for impeachment purposes on cross-examina-
tion, even though the Speech or Debate Clause would pro-
hibit its use as substantive evidence, appears to have been
answered by our Third Circuit in its decision concerning
proceedings before the grand jury in this case. In re Grand
Jury Investigation ("A", Intervenor), 587 F.2d 589 (3d Cir.
1978). The Court held that the Speech or Debate privilege
prohibits any use of protected material, since the privilege
"is at its core a use privilege." Id. at 596. As Judge Gib-
bons stated:

Unlike a violation of the Fourth Amendment which the Calandra Court held to be a past abuse and thus the lawful basis for subsequent grand jury questioning, it is the very act of questioning that triggers the protections of the Speech or Debate Clause.

Id. at 598.

[Slip Opinion at 3-4.]

In denying the motion to suppress Stephen B. Elko's expected testimony, the court stated:

We find that the expected testimony of Mr. Elko is not
protected by the Speech or Debate Clause. This testimony
does not pertain to legislative activity. It does concern
actions with the executive branch of government for the
purpose of effectuating the release of grant funds from
CSA to Hahnemann. It is the type of legislator-to-executive
contact which the Supreme Court has found not to be
protected by the Speech or Debate Clause. Brewster, supra.
As the Court there stated:

It is well known, of course, that Members of the
Congress engage in many activities other than the
purely legislative activities protected by the
Speech or Debate Clause. These include a wide
range of legitimate "errands" performed for con-
stituents, the making of appointments with Gov-
ernment agencies, assistance in securing Govern-
ment contracts

* *

Id. 408 U.S. at 513, 92 S.Ct. at 531. Again, in Gravel, supra,
the Court stated:

That Senators generally perform certain acts in
their official capacity as Senators does not neces-
sarily make all such acts legislative in nature.
Members of Congress are constantly in touch with
the Executive Branch of the Government and
with administrative agencies-they may cajole,
and exhort with respect to the administration of a

federal statute-but such conduct, though general

ly done, is not protected legislative activity.

[Slip Opinion at 5-6]

The second memorandum and order filed by the court denied Representative Eilberg's motion to dismiss the indictment; granted his motion for a bill of particulars, but only as to certain particulars and denied it in all other respects; reserved ruling on his motion for a change of venue; and noted that his motion for discovery was moot because the government had represented to the court that it had made available to Congressman Eilberg all discoverable material.

On February 20, 1979, Representative Eilberg filed a motion to dismiss the superseding indictment along with a memorandum in support of his motion to dismiss; and a supplemental motion to dismiss count two of the superseding indictment, along with a memorandum of law in support of his supplemental motion to dismiss that count.

On the same date, Representative Eilberg also filed a motion to intervene in a trial subpoena duces tecum directed to the Library of Congress and for an order quashing such subpoena. In his motion, Representative Eilberg claimed that he had been informed of the service of a trial subpoena duces tecum by the Government upon the Library of Congress seeking certain written opinions prepared by counsel with the American Law Division, for use by him when he was a member of Congress. Representative Eilberg claimed in his motion that the opinion letters were prepared and issued pursuant to an attorney-client relationship, between him and counsel for the American Law Division and that he had a right to intervene to prevent the Department of Justice from violating his attorneyclient privilege.

On February 22, 1979, the Government filed a memorandum of law on the admissability of the reports of the Library of Congress; the court granted the motion of the Government to dismiss the indictment filed against Representative Eilberg on October 24, 1978; and a motion and order dismissing count II of the superseding indictment was filed.

On February 23, 1979, the Clerk of the House on behalf of the Director of the Congressional Research Service and the Chief of the American Law Division filed a motion with the court to quash the subpoena duces tecum directed to the Library of Congress. The basis of the motion to quash was that the documents sought by the subpoena were within the parameters of the Speech or Debate protection as recognized by the judiciary.

On the same day, an order was filed by the court which, among other things, denied Representative Eilberg's supplemental motion to dismiss the superseding indictment; granted his motion to intervene in connection with the motion to quash the subpoena duces tecum to the Library of Congress; and denied his motion for a change of venue.

Also on that date, the court issued an order which denied the motion of the Congressional Research Service to quash the subpoena duces tecum for correspondence between it and Representative Eilberg.

On February 26, 1979, Representative Eilberg changed his plea to guilty to count II. A judgment and commitment order was entered which fined him ten thousand dollars and placed him on probation

for five years.

Status.-The case has been closed.

The full text of the February 15, 1979 memorandum and order is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interests to the Congress, March 31, 1979.

Ragas v. Davis

Civil Action Nos. 77-3390 and 77–3391 (E. D. Louisiana)

The congressional elections of 1976 generated seven contests. Pursuant to Rule X, 1. (i) (11) of the Rules of the House, the Committee on House Administration undertook to resolve the various challenges by appointing a number of three-member ad hoc panels. One such panel was to investigate the validity of the Democratic Primary contest in Louisiana between Richard A. Tonry and James A. Moreau. The panel was chaired by Representative Mendel Davis of South Carolina, and included among its professional staff Robert E. Moss, General Counsel to the Committee on House Administration, and John McGarry, Special Counsel to the Committee on House Administration.

In October 1977, the election commissioners of Plaquemines Parish, Louisiana and the Parish Registrar of Voters filed identical petitions for damages in the district courts of Orleans and Plaquemines Parishes, Louisiana. The complaints alleged that defendants Mendel Davis, Robert E. Moss, and John McGarry made defamatory statements about the plaintiffs in the course of investigating the Moreau-Tonry dispute. In November and December 1977 the actions were removed to the U.S. District Court for the Eastern District of Lousiana where they were subsequently consolidated. The defamatory statements complained of were allegedly made by Representative Davis to news reporters during the ad hoc panel's investigation. The following defamatory statements were alleged by plaintiffs to have appeared in the New Orleans newspapers:

"U.S. Rep. Mendel Davis, D-S.C. said Congressional Investigators in their probe of October 2 voting had found 'overwhelming fraud' by both sides in the election." States Item, May 4, 1977.

""There were definitely irregularities on both sides,' Davis said." Times-Picayune, May 5, 1977.

While the plaintiffs conceded that neither Mr. Moss nor Mr. McGarry made any statements to the press, it was claimed that Mr. Moss and Mr. McGarry, along with Representative Davis, prepared and disseminated to the public a report of their investigation. Allegedly this report contained defamatory material,

In February, 1978 defendants Davis, McGarry and Moss filed a motion to dismiss the complaint. The defendants claimed that the acts complained of were done in the course of legislative activity for which they could not be questioned under the Speech or Debate Clause of the Constitution.

On July 31, 1979 the defendants motion to dismiss was denied. In its Memorandum-Order, the District Court stated that whatever doubts existed as to whether statements to the press are protected by the Clause, were removed by the recent holding of the U.S. Supreme Court in Hutchinson v. Proxmire (see p. 7 of this report for a discussion of the case). In Hutchinson newsletters and press releases were held not to be protected. Accordingly, Congressman Davis' statements to the press would likewise be unprotected with respect to the allegedly defamatory report. The Court stated that under Gravel; v. United States, 408 U.S. 606 (1972) and Doe v. McMillan, 412 U.S. 306 (1973), "Any private publication of a report is clearly not protected * [Slip opinion at 4.] Thus, if the defendants caused a defamatory report to be circulated to the public, the Speech or Debate Člause would offer no protection. Status.-The case is pending before the U.S. District Court for the Eastern District of Louisiana.

Common Cause v. Bolger (formerly Bailar, formerly Klassen)
Civil Action No. 1887-73 (D.D.C.)

Originally filed on October 5, 1973, this action seeks declaratory and injunctive relief against the Postmaster General, and the Secretary of the Treasury for actions they allegedly performed or failed to perform, in the course of their official duties relating to the congressional franking privilege.

Plaintiffs, Common Cause and John W. Gardner, then-Chairman of Common Cause, amended their original complaint on March 12, 1974, following the enactment of the Franking Act of 1973 [Pub. L. 93-191] on December 18, 1973, to incorporate references to the new statutory language.

Plaintiffs allege that the use of the frank for newsletters and news releases by a Member of Congress-then a candidate for nomination or election or engaged in fundraising for a candidacy— and the use of the frank on mail matter such as condolences, biographies, pictures or writings laudatory or complimentary to a Member on the basis of performance of official duties: (1) abridges plaintiffs' First Amendment rights; (2) denies their Fifth Amendment rights; (3) is an unlawful appropriation of public funds for nonpublic purposes; (4) violates the Postmaster General's statutory duty; and (5) is an unlawful disbursement of public funds contrary to the statutory duties of the Secretary of the Treasury. [See 39 U.S.C. §3210.]

On May 31, 1974, the defendants filed a motion to dismiss, together with supporting memorandum, asserting as grounds that:

The court lacks jurisdiction over the subject matter of this
action in that neither of the above-named defendants are
proper parties to this proceeding, the plaintiffs have failed
to exhaust the administrative remedies available to them,
the plaintiffs lack standing to maintain this action, and
the complaint fails to state a claim upon which relief
may be granted. [Defendant's motion to dismiss, May 31,
1974.]

* *

On June 14, 1974, plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss as well as an application to

convene a three-judge District Court. On June 26, 1974, U.S. District Judge John H. Pratt, denied without opinion defendants' motion to dismiss. On July 1, 1974, Judge Pratt signed an order convening the three-judge District Court requested by the plaintiffs. A week later, on July 8, 1974, the defendants filed their answer to the amended complaint.

Since September 9, 1974, plaintiffs have attempted to depose and serve subpoenas duces tecum on numerous current and former congressional employees. A partial list follows: Victor C. Smiroldo, Staff Director of the House Commission on Congressional Mailing Standards; Benjamin R. Fern, Chief Counsel, the Senate Select Committee on Standards and Conduct; David Ramage, House Majority Clerk; Thomas J. Lankford, House Minority Clerk; Joseph J. Fahey, Supervisor of the Senate Folding Room; Edmund L. Henshaw, then Assistant Sergeant at Arms of the House; John M. Swanner, Staff Director of the House Committee on Standards of Official Conduct; Eli Bjellos, Chief of the House Publications Distribution Service; Harold Needham, Superintendent of the Senate Services Department; James Estep, Manager of the Senate Computer Center; Buehl Berentson, Executive Director of the National Republican Senatorial Committee; Bill Goodwin of the National Republican Senatorial Committee; Lee MacGregor, former Aide to Senator Robert Griffin; Joyce Baker, a former employee of the Senate Republican Policy Committee; Richard Conlon, Staff Director of the House Democratic Study Group; Lynda E. Clancey, Richard P. Clifton, and Glee Gomien, Staff Assistants of the Republican Senatorial Campaign Committee; Jay Bryant, Special Assistant in the Office of the Minority Whip; Edward L. Beach, Staff Director and Secretary of the Senate Republican Policy Committee and Senate Republican Conference; Edwin F. Feulner, Executive Director of the House Republican Study Committee; Patricia Goldman, Director of the Wednesday Group; and Jay D. Sterling, Executive Director of the House Republican Research Committee.

On October 9, 1974, the Senate passed S. Res. 423 regarding Mr. Fern, and on October 11, 1974, passed S. Res. 431 regarding Messrs. Estep, Needham, and Fahey. The resolutions stated that by the privileges of the Senate no evidence of a documentary character under the control and in the possession of the Senate may be taken, without its permission, by the mandate of process of ordinary courts of justice; that the employees were authorized to appear before the court but not to take with them any papers or documents on file in their offices or in their possession; and that when the court determined that any of the subpoenaed documents and papers had become part of the official transcripts of public proceedings of the Senate, and that they were material to the case, the court could receive copies of the documents. On November 22, 1974, a similarly worded S. Res. 436 was passed regarding, Joyce Baker.

The subpoenas of House employees Bjellos, Swanner, Smiroldo, Ramage, and Lankford were presented by the Speaker to the House for its consideration on September 30, 1974. When the employees failed to appear for their depositions, plaintiffs filed motions to compel their testimony.