UNITED STATES v. BREWSTER

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Argument of Griswold

Chief Justice Warren E. Burger: United States against Brewster.

The -- excuse me Mr. Solicitor General the orders have been duly filed and certified as you know and will not otherwise be announced.

Mr. Solicitor General you may proceed.

Mr. Griswold: Mr. Chief Justice and may it please the Court.

This is a direct appeal from a decision of the United States District Court for the District of Columbia which has held that an act of Congress, generally applicable throughout the United States is unconstitutional as applied to the offense charged in the criminal indictment before it.

The offense, to put it simply, is bribery and the defendant against whom the charge is made was a United States Senator at the time charged is now a former United States Senator.

The facts are simple.

There is virtually nothing before the Court except the indictment, found by the grand jury and a motion to dismiss the indictment which was granted.

The indictment contains a number of counts.

The odd numbered counts relate to the defendant, the alleged bribee.

The even number counts relate to the parties who are charged with having offered or given the bribe, or the briber.

And the underlying facts appear on page 1 of the appendix in the -- as alleged in the indictment, that at all times, Daniel Brewster was a public official of the United States, a member of the Senate of the United States from the State of Maryland.

And then the gist of the charge appears on page 2 of the appendix with respect to count 1 and I repeat, the odd numbered count relates to Senator Brewster and are all essentially the same as far as the issue now before the Court is concerned and the charge is that he corruptly asked, solicited, sought, accepted, received and agreed to receive the sum of $5,000.00 for himself and for an entity, that is the DC Committee from Maryland Education, from Cyrus T Anderson and Spiegel Inc. in return for being influenced in his performance of official acts in respect of his action, vote and decision on postage rate legislation which might at any time be pending before him in his official capacity.

Now, the motion which was filed on behalf of the defendant appears on page 8 of the appendix.

There is also another motion on page 9 which relates to vagueness and things to that sort which was not dealt with in any way by the District Court and an appeal under the Criminal Appeals Act brings to this Court only the issue which was dealt with, excuse me, this is not the Criminal Appeals Act, this is the Act allowing direct appeals in cases where an act to Congress has been held unconstitutional and such an appeal brings here only the issue which was decided below.

And the motion to dismiss on page 8 of the appendix, the defendant moves to dismiss the odd numbered counts and ground is that counts 1, 3, 5, and 7 of the indictment charged this defendant with violations of 18 U.S.C. 201 (c) (1) and in each such count this defendant is charged with being influenced in his performance of official acts in his capacity as a United States Senator.

And there is of course not the slightest doubt that that is what the indictment charge is, that he was influenced in his official acts, in his capacity as a United States Senator.

Now, the question of jurisdiction of this Court was postponed until the hearing on the merits and here I find I have made a mistake.

This is an appeal under the Criminal Appeals Act.

It might possibly have been brought under the other statutes, but it is an appeal under the Criminal Appeals Act.

The statute involved is the former form of Section 3731 of Title XVIII and known as the Criminal Appeals Act.

The amendment to this provision which was enacted last January is not applicable since the case was began by indictment on December 1, 1969, more than a year before the enactment of the amendment.

The relevant provisions of the Criminal Appeals Act are quoted on page 5 of the appellee’s motion to dismiss or affirm and on page 9 of the appellee’s brief and to refresh the Court’s recollection, I will read the two provisions involved which are at least verbally, relevantly, relatively simple.

Appeal lies to this Court under that statute from a decision or judgment setting aside or dismissing any indictment or information on any count thereof where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.

And the other statute relating to appeals on acts that -- decisions holding act of Congress unconstitutional is not applicable because it applies only to civil cases.

And this is a criminal case and the second head of jurisdiction under the old Criminal Appeals Act is from the decision or judgment sustaining a motion in bar when the defendant has not been put in jeopardy.

And we contend that there is jurisdiction under this case under either or both of those two provisions of the former Criminal Appeals Act.

In the first place, it is entirely clear that the defendant has not been put in jeopardy.

No jury was empaneled nor was the case in any way submitted to the judge as a trier of the facts with the judge sitting in place of a jury.

There was simply the indictment and the motion to dismiss, the traditional way to raise a legal question with respect to a criminal indictment and thus the case comes within the language of Justice Harlan in the Sisson case, where in distinguishing this Court’s decision in United States against Covington.

Justice Harlan noted that the dismissal in Covington was “before trial without any evidentiary hearing” and that is printed in the italics in the report itself.

That of course is exactly the situation here.

This was before trial and without any evidentiary hearing.

And similarly the situation comes clearly within the language used in the Court’s opinion in the Jorn case last term where it was said that in enacting the Criminal Appeals Act, Congress wished “to avoid subjecting the defendant to a second trial, where the first had terminated in a manner favorable to the defendant either because of a jury verdict or because of judicial action.”

Here there has never been a first trial.

There has been a motion to dismiss entirely on the face of the pleadings.

There has been a decision on that motion to dismiss, but that is not in the sense of the Criminal Appeals Act or the sense of double jeopardy, a trial.

In this case there was no stipulation of facts of any sort.

There was nothing that could even be regarded as a Bill of Particulars or anything like that.

There were no concessions by the Government of any sort, nor any factual assertions by the Government beyond what is stated in the indictment.

The entire proceedings before Judge Hart are printed in the appendix.

I believe that what I have said with respect to them is fully supported by the record.

There is nothing in it to support a contention that Judge Hart made any sort of a factual determination or adjudication.

What he decided is that on the facts alleged in the indictment, the statute cannot be constitutionally applied.

And Mr. Ramsey quite properly points to language which was used by Judge Hart in expressing his opinion and this appears on page 33 of the appendix.

And Judge Hart did say right at the middle of the page, gentlemen, “based on the facts of this case, which sounds bad from my point of view, it is admitted by the Government, which sounds bad from my point of view, that the five counts of the indictment which charged Senator Brewster relate to the acceptance of bribes in connection with performance of a legislative function by a Senator of the United States.”

But from an examination of the transcript, it is readily apparent that the facts to which Judge Hart was referring were those stated in the indictment not anything that was conceded by the Government or asserted by the Government or offered by way of affidavit, deposition in any other way in terms of facts, above and beyond the effects alleged in the indictment.

And it is also clear that nothing was admitted in a factual sense by counsel, by -- for the Government, before Judge Hart.

Insofar as counsel admitted anything there, it was that the facts charged in the indictment are those which are -- they are alleged, namely that the defendant was at all relevant times a United States Senator and that he is charged with seeking and receiving a bribe under the circumstances stated in the indictment.

Thus there is clearly a case in which the Court below has held that an act of Congress is unconstitutional as applied to the facts alleged in this indictment.

This seems to come squarely within this Court’s decision in the Knox case in 396 U.S.which upheld the jurisdiction of this Court under the Criminal Appeals Act, where the statute has been held unconstitutional as applied to the facts alleged in the indictment, although not generally unconstitutional.

It is also our view that there is jurisdiction under the other clause of Section 3731, the one relating to a motion in bar.

We contend that the assertion made in the motion to dismiss in this case, namely that, this defendant is charged with being influenced in his performance of official acts in his capacity as a United Sated Senator and that the indictment for this reason violates the provision of Article 1, Section 6 of the United States constitution is a motion in bar.

Sometimes a motion in bar is referred to as a confession in avoidance and Mr. Ramsey says that the defendant has not confessed.

I think though that the problem comes from too broader use of the word confession.

When a person raises the statute on limitations or a pardon, this is clearly within the motion in bar provision, yet in such a case the defendant need not to confess.

He says in the effect, whether I did it or not or even if I did do it, you cannot prosecute me because of the statute of limitations or the pardon as the case may be.

And this is exactly what Senator Brewster’s counsel have said here, whether I did it or not or even if I did do it, you cannot prosecute me because of the speech or debate clause.

This seems to me to be what is meant by motion in bar as used in this statute or by the term special plea in bar, which was used in its original form.

It is for example the kind of motion that would have been made by a member of the House of Commons in the 18th century.

If there were a charge against him which he cannot allege, he came within parliamentary privilege.

What the defendant is saying is that even if I admitted all of the facts, I have a special defense that I suggest is a motion in bar and brings this case within the jurisdictional statute.

Now, let me turn to the merits of the case which is of course a natural sequel to the Court’s decision in the Johnson case in 383 U.S. decided little over five years ago.

Understandably enough, the appellee relies on the Johnson decision and it is incumbent on me to show that the facts there make that case distinguishable from those which are alleged in this indictment and I repeat we have nothing here except the facts alleged in the indictment.

It is perfectly possible, it seems to me for this trial to be conducted under this indictment in a way which might infringe the Johnson case and if that were done, there would be another issue, but that is not the problem here.

The problem here is whether the trial can be conducted in such a way as not to infringe the Johnson case and I submit that it can.

Justice Potter Stewart: The Johnson case came here after a conviction?

Mr. Griswold: The Johnson case came here after a verdict of guilty by a jury in a full trial.

Justice Potter Stewart: On a full transcript for the evidence?

Mr. Griswold: Full transcript of the evidence and reversal by the Court of Appeals and that reversal was upheld by this Court and indeed with the benefit of hindsight, it seems apparent that the Johnson case was an unfortunate one to bring here from the Government’s point of view.

In the first, the charge there, the issue there related to a charge under the conspiracy statute which is I suppose the most general of all criminal statutes, the one most subject to undue extension by a wide ranging prosecutor.

In the second place, the prosecution of Congressman Johnson largely turned on a speech which he made on the floor of Congress, that is the prosecution with respect to this, there was also another count of a conflict of interest which related to his appearances in the Department of Justice, but the conspiracy charge related to a speech he had made in the floor of Congress relating to building and loan associations.

Although the record was a long one and had many things in it, 50 pages of the transcript related to the speech in the case presented by the Government and there was much more about the speech in the presentation of the defense.

The Government indeed introduced a copy of the speech in evidence.

The conspiracy charge was that the speech was not made for any legislative purpose, but was made by Congressman Johnson for fee in order to that might reprinted and distributed to prospective depositors so as to encourage them to make deposits in Maryland’s Savings and Loan associations.

It is also relevant I think that the indictment contained a substantial allegation about the speech and this was reproduced in this Court’s opinion at page 184, at paragraph 15, I read from the opinion.

It was a part of said conspiracy that it said, Thomas F. Johnson should render services for compensation to with the making of a speech, defending the operations of Maryland’s independent savings and loan associations, the financial stability insolvency thereof and the reliability and integrity of the commercial insurance on investments made by said independent savings and loan associations on the floor of the House of Representatives.

Thus, that was a central part of the actual charge in that case.

It should be observed too that the Court’s opinion is narrowly guarded.

On page 184 of the opinion, Justice Harlan said near the top of the page, whatever room the constitution may allow for such factors in the context of a different kind of prosecution and here we clearly have a different kind of prosecution and then on page 185, Justice Harlan said we emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us which involved extensive utilization of the central factor in the prosecution of the making of a speech.

And the Court said we expressly leave open for consideration when the cases arises, a prosecution which though possibly entailing inquiring into legislative acts or motivations is founded on a narrowly drawn statute passed by Congress in the exercise of its legislative part to regulate the conduct of its members.

Justice William J. Brennan: Are you suggesting Solicitor General that if the form of statute we have here had been the form of statute involved in the Johnson case, it was open in the other way?

Mr. Griswold: Mr. Justice Brennan, I think very likely not because of the extensive use of the speech.

It is a little hard for me to answer it because the very fact that it was a conspiracy charge and that you would then been had to allege the extensive activities to support the conspiracy is part of what brought up the problem and I would agree that if this case went to trial and we ended up with a record like that in the Johnson case that we might will have a very serious problem.

It will not be my responsibility to try the case.

Justice William J. Brennan: Suppose we have had a provision of this very statute that we dealing with now, another Section which had said it was a criminal offense to accept a bribe from making a speech on the floor of the House.

Oh! That were the (Voice Overlap) that we have dealt with.

Mr. Griswold: Mr. Justice I would be prepared to defend that.

Under the Johnson decision it is a more difficult case than we have here, though not a great deal more difficult because this one refers to both.

Justice Byron R. White: Not in here.

In the Johnson case it was plaintiff speaking as a -- speaking as thinking of voting in terms reaching the cause?

Mr. Griswold: No Mr. Justice.

I think the Court has at times equated speeches.

Justice Byron R. White: Even if there is no argument to the speech (Inaudible)?

Mr. Griswold: Mr. Justice I am not quite going to accept that in all its impact.

After all, the speech and debate clause refers only to speech and debate.

And --

Justice Byron R. White: So you are just not arguing it?

Mr. Griswold: I am just not arguing it.

I recognize that it is closely related, but some of the talk to the effect that some of the references in the opinions to the effect that it applies to both says well.

It seems to me to be an example of that well-known circumstance that we are always dealing with of the tendency of principles to expand themselves to the limit of their logic.

And all that I need to say here is that the Johnson case involving extensive use of the speech which is precisely what the constitution refers to, speech or debate.

For example, there are other extensions of the speech or debate clause made so far in Mr. Ramsey’s brief that it applies to any activity conducted by a Senator or Congressman in connection with his legislative work and I think that is far to extensive.

Now, I agree that the line between vote and the speech is pretty small, but the constitution refers only to speech and I think that language in the opinion in Johnson case to which I just referred, indicates that if there is reference to a vote, but it is incidental and then sure is not be the essence of the charge that the constitutional provision does not make it impossible for Congress to allocate the determination of the factual matters involved with respect to bribery of a Congress or Senator to the Courts.

Chief Justice Warren E. Burger: Does the conjunction of the terms of speech and debate in the constitution indicate that it is speeches in the Congress on the floor, the debates in the Congress on the floor that is being talked about or is it broader than that?

Mr. Griswold: Mr. Chief Justice it is speech or debate rather than speech and debate.

I do not think that in this context makes any difference.

I would suppose that if they had wanted to say vote, it might have occurred to somebody before any speech, debate or vote in either House, if the vote is expressly left out.

If the Court feels that the speech or debate clause makes it impossible for Congress to make it a crime for a Congressman to accept a bribe then this appeal must fail.

I do not think that the Johnson case decided that.

I do not think that the speech or debate clause requires that conclusion.

I think that the Johnson case itself expressly left this question open and indicated that under a properly drawn statute the mere fact that was some reference to a vote was not fatal.

Justice William J. Brennan: Well, I have to be clear about this Mr. Solicitor.

You are not however contending that the speech and debate clause protects only speech, are you?

Mr. Griswold: I am walking right up to that Mr. Justice.

I agree that the Court has said several times in somewhat sweeping ways that it goes beyond speech or debate.

However, as I read the constitution, what the constitution says is speech or debate and I still find some difficulty in seeing how it is appropriate to construe it to apply to other things than speech or debate and I know of no case where the Court has so decided.

Justice William J. Brennan: But, what is troubling me of course is what is in your footnote at the bottom of page 11, where you say whatever the precise limits of Johnson, we do not contend --

Mr. Griswold: Well.

Justice William J. Brennan: -- that the clause protects only speech?

Mr. Griswold: I recall that and it is there and that I am not contending that it is limited to speech or literally to speech.

I am perfectly aware of the fact that the words have to be construed in a broader significance, but what I am trying to maintain is that the mere fact that there is a reference in this indictment to a vote, it does not mean that the statute is unconstitutional as applied to this -- the charge of this indictment and I am suggesting that the Court has never so decided.

Chief Justice Warren E. Burger: Would you think that speech or debate reach speaking and utterance in a committee hearing?

Mr. Griswold: Well, I would think not myself, but -- well, let me modify that.

I think of course that a Congressman or Senator should be protected against suit for libel, from things said in committee hearing, but the constitutional provision is for any speech or debate in either House.

We do not have that issue here.

I repeat I think that some of the language in some of the cases has been very broad and that there are no decisions on such matters even with respect to what is said in committee hearing, but it is not -- there is nothing about a committee hearing in this case, it is not necessary to decide that.

I would like in the brief time remaining to refer to the legislative history of this statute because as it is now stands it is in some what broad language.

This is the statute which is quoted on pages 2 and 3 of our brief.

It refers to public official who does these things and then public official is defined to include member of Congress.

This is not brought out in our brief and I would like an opportunity very briefly to present it.

The history of the statutory provision is that in 1853, Congress enacted a statute which was specifically applicable to members of Congress who take bribes and to take bribes with intent to influence his vote or decision on any question.

From on 1853 on, Congress has specifically provided that it was a crime for a Congressman or the Senator to take a bribe intended to influence his vote.

That was continued in the revised statutes of 1874 and 1878.

It was continued in the criminal code of 1908 and it was in effect in 1962, when Congress passed the present statute, but it is entirely clear that in enacting the present statute the motivation to consolidate a lot of separate bribery provisions dealing with public officials generally came from Congress, not from the Executive.

There was a report by a staff of subcommittee number 5 of the committee on judiciary of the House of Representatives in 1958, which recommended the consolidation of these provisions.

At page 71 of that report it is recommended that the provisions prohibiting the bribery of federal employees, members of Congress and judges and judicial officers including jurors be combined in a single statute and then that is carried forward in the committee reports, senate report of number 2213 in the 87th Congress.

The current bribery laws consist of separate sections applicable to various categories or persons, Government employees, members of Congress, judges and others.

Section 201 would bring all these categories within the purview of one section and make uniform the prescribed act of bribery as well as the intent or purpose involved.

And there is a similar provision in the House Committee report which is House report number 748 in the 87th Congress.

Now, whether at that time as you may recall a considerable development of thought about conflict of interest, a Bill with respect to conflict and interest came before Congress and it was at the initiative of the Senate Judiciary, of the House Judiciary committee that these provisions with respect to bribery or consolidated and introduced in the same Bill.

And I think it is perfectly fair to say that this statute should be construed in the light of its clear and long continued history as one which in part at least is focused by a Congress on the actions of Congressmen and Senators and amounts to a clear declaration by Congress that this sort of conduct should be tried in the Courts with the procedural safeguards and provisions which are applicable to criminal prosecutions before the judiciary.

Justice Potter Stewart: When was this statute at the present form enacted, I did not --

Mr. Griswold: In 1962.

Justice Potter Stewart: In 1962.

Mr. Griswold: It was 1958 that the House Committee recommended that they be consolidated.

When the conflict of interest statute came along, that was put in as a part of it and it was in 1962 that all the various bribery provisions were brought together into a single statute which looks quite broad as it is now, but which in the light of its historical background is it seems to me quite narrowly focused in this application on bribery of Congressmen and Senators.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Before you proceed Mr. Ramsey, let me correct one impression for those who are defending on the order list.

The order list this week will come down on Tuesday, tomorrow and not today.

Mr. Ramsey, we will enlarge your time by 5 minutes which will give the Solicitor General a few moments, few minutes rebuttal time.

Argument of Norman P. Ramsey

Mr. Norman P. Ramsey: Perfectly grateful sir.

Chief Justice Warren E. Burger: (Voice Overlap) five minutes.

Mr. Norman P. Ramsey: Mr. Chief Justice and may it please the Court.

I would like to address myself first if I may to what I believe is a misconception on the part of the Solicitor --Mr. Solicitor General as respect the factual background of this case which was before Judge Hart at the time he decided the issue which brings the case here.

At page 12 of the appendix, there appears colloquy between counsel and the Court and I am quoting from my own remarks to Judge Hart, if the Court please.

I made the statement at the foot of page 12 and at the top of page 13.

Now, in this regard the papers which have been filed in the case and the data which had been supplied as respects to the claims made against the defendant Brewster make it perfectly clear that what is being attacked by this indictment are Senator Brewster’s votes in Committee and his votes on the floor and his activities in connection with what the Supreme Court has described as things generally done in a session of the House by its members.

The Assistant United States Attorney who was arguing the case came back to this point at page 28 of the appendix, in colloquy again with Judge Hart.

Judge Hart and I am spiking into the middle of a Court’s question at about midway down, page 28 of the appendix, if the Court please.

“Well, tell me this? Does the indictment in any ways allege that Brewster did anything not related to his purely legislative functions.

Mr. Barret: We are not contending that what is being charged here, that is the activity by Brewster, was anything other than a legislative act.

We are not ducking the question.

It is squarely presented.

They are legislative acts.

We are not going to quibble over that.”

Now this is against the background if the Court please of there having been supplied on a confidential basis to the Court, a memorandum or fact which replaced a statement in connection with a motion for particulars which outlines the very acts which were addressed to the particular counts and what the assistant was telling Judge Hart was, Your Honor, we do not contend their were any activities, not legislative in nature and that is fully supportive in the record, in this case.

Unknown Speaker: Do we --

Justice William J. Brennan: Your argument Mr. Ramsey is this was really summary judgment not dismissed (Inaudible)

Mr. Norman P. Ramsey: That is correct, and we would say --

Justice William J. Brennan: Where is that memorandum, is not part of record before us?

Mr. Norman P. Ramsey: It is --

Justice William J. Brennan: I had never seen it in the record?

Mr. Norman P. Ramsey: It is -- it is a confidential memorandum in the record.

I simply put in context Justice Brennan.

Justice William J. Brennan: But how are we to treat this summary judgment, if we do not have a basis upon which you make that argument?

Mr. Norman P. Ramsey: I would say Mr. Justice that our approach that is that the assistant did make a concession of fact.

That is to say that it was a stipulation which was made by the assistant as respect to what the facts of the case were, put before the District Judge and the District Judge was entitled to rely upon that as negating the need for additional proof in this particular record, although the confidential memo does exist in the records of the District Court.

But he need -- he saw no need to an effect say, we will put on the record the full confidential memorandum which has been heretofore filed and obviously what was -- this concern of counsel and the Court at that point in time, that this case was approaching trial.

We were in the antecedent stage of coming to trial and there was plenty of publicity as it was.

There was no need to have further newspaper publicity over what might be called the detailed particulars of the count, but Judge Hart did not need to put it on the record where the assistant said flatly, on behalf of United States --

Justice Thurgood Marshall: Mr. Ramsey, did he give a stipulation or did he give his interpretation of what the indictment said?

Mr. Norman P. Ramsey: Mr. Justice, the approach was that the Government supplied a memorandum of alleged --

Justice Thurgood Marshall: Well, so far as I am concerned, if the memorandum is not in this record, I am not interested in it, at least for this question?

Mr. Norman P. Ramsey: Well, all I -- the only answer I give to that Mr. Justice Marshall is --

Justice Thurgood Marshall: Well, he did not mention a memorandum in that statement, did he?

Mr. Norman P. Ramsey: That is the essence of the memorandum, but nothing except legislative acts are concerned, sir.

Justice Thurgood Marshall: And what you read us, he did not mention the memorandum, did he?

Mr. Norman P. Ramsey: He did not mention the memorandum, yes sir.

Justice Thurgood Marshall: Well, was he not merely stating what his opinion was of what was in the indictment?

Mr. Norman P. Ramsey: No, Your Honor, I must disagree with that.

What he was saying was what record in fact disclosed, that is to say --

Justice Thurgood Marshall: Well, what record?

Mr. Norman P. Ramsey: The record which the assistant knew about, the Court knew about.

Justice Thurgood Marshall: You are talking about this record?

Mr. Norman P. Ramsey: The record in the case before Judge Hart sir.

Justice Thurgood Marshall: Is it here?

Mr. Norman P. Ramsey: It is not, except in the form of the concession by the assistant.

Justice William O. Douglas: Well the -- Judge Hart in the first paragraph of his opinion speaks of the facts of this case.

Mr. Norman P. Ramsey: Yes Mr. Justice and it was on that basis that I was trying to put in context all that was said before the Court was that the Court was relying on facts which he knew to be concessions in the record by United States openly conceded by the assistant that he was testing legislative acts pure and simple.

Chief Justice Warren E. Burger: But Mr. Ramsey, I am looking at page 2 of the appendix now of the indictment, just above the middle of page, the indictment charges in return for being influenced in his performance of official act in respect to his action, vote and decision on postage rate legislation which might at any time be pending before him in his official capacity.

Now --

Mr. Norman P. Ramsey: Yes, Your Honor.

Chief Justice Warren E. Burger: -- how would any details of this so called Bill of Particulars be basically different from that except to pinpoint the particular day or hour or what not?

Mr. Norman P. Ramsey: That is precisely the way in which the particulars -- the particulars simply addressed themselves to the allegation of the indictment which was, that it was official action that is to say legislative action and that is precisely what it did.

On the given day at a given time in a given committee hearing, in a given both on the floor there was a certain step taken by the Senator which is alleged to show that his action, vote and decision was inferentially at least premised upon antecedent conduct for relations with Spiegel and/or Anderson.

Chief Justice Warren E. Burger: I have difficulty seeing how the power or the day actually enlarges what is already said in the indictment so far as the constitutional provision is concerned or the jurisdiction of the Court?

Mr. Norman P. Ramsey: I think Mr. Chief Justice that so far as the jurisdiction and so far as the constitutional point are concerned it cannot be -- it cannot be addressed purely on the basis of the structure of the indictment.

I believe however in fairness to the Court that all of these items which appear throughout this record in which the Solicitor General had not caught the copy items in that context, do clearly indicate that the Government never contended it was anything but legislative action which was under attack here.

Therefore we are not up against the miasma of claims that he may have acted with the executive for example, in the Burton type situation where a U.S. Senator or the Johnson type is substantive counts where a Congressman works into the Executive side of the Government and may indeed be subjected to criminal prosecution as was Congressman Johnson in connection with his activities before the Attorney General of the United States in the Executive side.

Now, this is the provision which we have taken right along that is to say that, basically you may approach the entirety of the problem plus the constitutional matter and of the jurisdictional matter on the basis of the indictment before the Court and our motion to dismiss because we view our motion to dismiss, if the Court please in this posture, under the earlier teachings of the Court in cases which have dealt with the speech or debate clause that is, that has become before this Court, it has taken on a significance which is to the effect that not only does the clause give protection to the accused Senator or Congressman from the accusation itself, but freeze him indeed from the obligation to defend himself.

This of course, Mr. Chief Justice, you will recall within that aspect of the Powell case in the Lower Court opinion, the Circuit Court opinion written while you were on the bench here in DC and it also was the teaching of the Dombrowski case and ultimately of the Powell case before this Court when it came up here.

That there was a freedom not only from the charge itself, but in addition, it was intended to free the particular public servant of the obligation of defending himself which is an even more subtle concept in the sense that it does not quite come to the same form of immunity that we normally think of.

It has stepped in ahead and what we had done by our motion to dismiss in this case was invite the District Court’s attention to the operative events which lead to our being in a position where we could say to the Court, we ought to be protected against the obligation even to defend ourselves because --

Justice Potter Stewart: Defend himself from what?

Mr. Norman P. Ramsey: Defend himself from that, the liability --Mr. Justice, the -- it speaks in terms of being questioned in any other place --

Justice Potter Stewart: Or any speech or a debate?

Mr. Norman P. Ramsey: That is correct sir.

Justice Potter Stewart: But now let us assume that the defendant in this case never made a speech, never engaged in debate, never cast a vote in committee or on the floor, but nonetheless took a bribe in return for his promise to do one of those things, but either he had never got around to it or he broke his promise, then what would the posture of the case to be?

Mr. Norman P. Ramsey: I think Mr. Justice Stewart, the problem we are up against there is whether this -- his motivation maybe questioned, that is to say (Voice Overlap)

Justice Potter Stewart: What was the bribe?

Mr. Norman P. Ramsey: -- in taking -- what is this money, motive for accepting the money is really what you are asking me sir and to that extent, you see, you go to motivation and the Kilbourn case and all of the other cases have addressed themselves not only to acts and conduct, but anything which inquired into motive for the vote.

Justice Potter Stewart: Well, my -- in my hypothetical case there was no vote.

He took a bribe in return for his promise to vote in a certain way or make a certain speech, but either he broke his promise or else he never got around to it before he was indicted then what role, if any, would the speech or debate clause have?

Mr. Norman P. Ramsey: It seems to me that the speech and debate clause again.

Keep him from being questioned at any other place other than the House of which he was a member.

We do not contend that the Senator or a Congressman go scoot free.

Justice Potter Stewart: Questioned for what in any other place?

He is now just simply being charged with talking a bribe?

Mr. Norman P. Ramsey: Yes, but in order to prove the bribe up --

Justice Potter Stewart: And he has never done anything in the House or in the Senate?

Mr. Norman P. Ramsey: That is correct.

Justice Potter Stewart: In response to the bribe?

Mr. Norman P. Ramsey: Yes Your Honor, if I may address myself to the point.

Mr. Justice the way I see it, it is -- the situation is this.

At the time he accepted the money in order to prove up the bribery case, simply let us say to prove that he undertook to do a certain thing, that is to say that he was to be motivated in connection with official conduct otherwise you have proven no bribes.

It is precisely that which the constitutional clause would interdict and stopping for pariente.

Justice Potter Stewart: It does not say so, does it not, constitutional clause simply does not say so?

Mr. Norman P. Ramsey: I think sir that constitutional clause has taken on the gloss (ph) of the cases which have interpreted it all away down.

Justice Potter Stewart: Well, what case interpreted in way to support your answer to my question?

Mr. Norman P. Ramsey: It seems to the me the Kilbourn case does sir in connection with motive, inquiry into motive in any place other than the House of Representatives (Voice Overlap)

Justice Potter Stewart: Motive for doing what?

Making a speech or a debate or vote?

Here under my question there was no speech, there was no debate and there was no vote.

It was merely the taking of bribe.

Mr. Norman P. Ramsey: I understand the proposition which the Court puts to me, but I trust it is not thought to be this situation sir, because this was alleged to be for a vote for various conduct --

Justice Potter Stewart: In return for the promise to vote in a certain way, is there an allegation that there was any such vote in the indictment?

Mr. Norman P. Ramsey: Yes sir.

Justice Potter Stewart: In all of the counts?

Mr. Norman P. Ramsey: One, well, initial counts, the first counts, all deal with the pending or to be pending before him.

The last count, sir, does the 201 (g), which has to do with past conduct as distinct from anticipatory conduct.

So he is alleged to have received in connection with his vote and his action and his official conduct in connection with either anticipate it or coming legislation, legislation pending in the Congress and in the last count, with legislation which had been in an earlier context.

Justice Potter Stewart: It is seems to me that at least some of the counts of this indictment pretty well fit under my hypothetical case?

Mr. Norman P. Ramsey: No problem.

This is why I say it to the Court that the concession by the assistant that what is talked about is to vote and what is talked about is legislative conduct, pure and simple.

Justice Potter Stewart: What he has talked about in the indictment is taking a bribe, is it not?

Mr. Norman P. Ramsey: That is correct, in return for being influenced and in respect to his action, vote and decision.

Chief Justice Warren E. Burger: Mr. Ramsey.

Mr. Norman P. Ramsey: Yes, Mr. Justice.

Chief Justice Warren E. Burger: Would your answer or your position be essentially the same if the bribe had been given to a number -- for the explicit comments not to vote and not to make a speech.

That is, suppose he were an opponent to the legislation and the money were paid with a negative, instead of the positive --

Mr. Norman P. Ramsey: To stay away and it stains --

Chief Justice Warren E. Burger: To stay away, to absent --

Mr. Norman P. Ramsey: I would sir.

I would think that in that instance again you would be inquiring into the motive of a legislature -- legislator and I believe sir that speech or debate clause would protect against inquiry.

Now as I --

Justice Potter Stewart: Then if he stayed away, if in inquiry into he is staying away.

Mr. Norman P. Ramsey: That is correct sir, that is absolutely correct.

Justice Potter Stewart: Right.

Mr. Norman P. Ramsey: But one has got -- one is a necessary quantum of proof in order to proof up the other.

As the Court pointed out in the Johnson case, Mr. Justice Stewart, you have got a number of aspects to the speech or debate clause.

One maybe the exclusion of evidence at the trial for example because if this case had gone to trial and a testimony had been elicited or sought to be elicited which had to do with motive for his acceptance of particular money, immediately you would have had confronting the Court, the problem of to what extent as an evidentiary matter, assuming that we do not meet it as a jurisdictional matter, this problem was raised also in the Powell case, does speech or debate address itself to jurisdiction of the Court.

In one phase of our brief, we have suggested that it is does in the sense that this is a power, delegated constitutionally to one branch of Government and should not intruded upon by another.

In another portion of the brief, we have suggested that the Congress jointly cannot do what the constitution gives to each of the Houses respectively.

The power to punish its own members, so that there still is in the background of this problem, the question of is it jurisdictional.

Now, if it is not jurisdictional and we do suggest at one point that it maybe.

It certainly, under the Johnson case and I think under any rule or reason, it has the application in the problems of admissibility of evidence at trial where you run into constitutional interdiction, if you try to elicit the Johnson type testimony, did you vote, why you did you?

Justice Thurgood Marshall: Mr. Ramsey.

Mr. Norman P. Ramsey: Yes sir.

Justice Thurgood Marshall: Suppose a Senator or Congressman accepts $5,000.00 of pay to speak and vote for a piece of legislation and another 5,000 would be to speak against and vote against the piece of legislation and goes fishing.

Do you think its bribery?

Mr. Norman P. Ramsey: I would certainly say, sir, that both of those actions of his would be subject to discipline in his House.

I am simply addressing myself in this instance to saying that they should not be questioned in any other place, which is what the speech and debate says.

Justice Thurgood Marshall: What would he be disciplined in the House, for going fishing?

Mr. Norman P. Ramsey: For improper conduct, no, for improper conduct in connection with holding out that he would be willing to be influenced in his vote.

That is -- that they hold, I hopefully a possible story is [Laughter] equality of bribing both ways and you ought to get a fair result, but [Laughter] the fishing aspect of it, I do not think would be a subject to discipline, Mr. Justice Marshall.

I come into the --

Justice William J. Brennan: I understand you Mr. Ramsey, your position is that the speech and debate clause go so far as to preclude except in the House of which he is a member, any kind of discipline against a Senator or a Congressman where one official, but is done as in connection with the -- his function as a Senator or Congressman, do you go that far?

Mr. Norman P. Ramsey: I do sir.

The legislative, if the -- Mr. Justice, your characterization of legislative conduct, yes sir, I do.

Justice William J. Brennan: That is why that -- when I said, it was connected with his official responsibilities.

Mr. Norman P. Ramsey: Yes sir, I do.

Justice William J. Brennan: Now and you say that the only discipline to which he maybe subject is any that maybe imposed by his own House, which would take what form?

Mr. Norman P. Ramsey: It could take the form as it had in the past illustrations which are found throughout the various studies of the Congress.

It can -- expulsion for example, suspension from the House, even imprisonment and disciplined by fine maybe imposed within the framework of the House’s ability -- House of Congress’s ability to discipline their own members.

Justice William J. Brennan: But what -- what the House of Senate might do in disciplining a member is nothing that the Congress may say shall be turned over to the Courts to do for them?

Mr. Norman P. Ramsey: That is one portion of our brief, Mr. Justice Brennan, we address ourself to that and suggest that where the Congress allocates to each House, that is not delegated to the Congress as a whole for the purpose of legislating concern, now I think sir, we have eliminated or admitted only one and that is a major thing to a politician and that is the people at the polls.

They have the absolute right to turn him out and this of course is one of the political realities of the whole situation which ultimately must be faced by everybody who must run for office and it is one of the real justifications for giving a political judgment as respect to proper punishment to a political forum as distinct from a judicial forum.

It permits the testing of the conduct of the members.

As the Solicitor General argues, he says get it out of the political forum, put into the Courts where the dispassionate grand jury, the dispassionate judges may hear it.

We say on the other hand that every reasonable practicality having to deal with men who must pick up, be elected to office, to men who must seek campaign contribution, to a men who necessarily must confer with, consult with and be influenced by their constituents day after day, in order to avoid an interest being drawn in a grand jury by an overactive (Voice Overlap).

Justice William J. Brennan: Mr. Ramsey, is there is anything in the framer's consideration of the speech and debate clause that supports that position?

Mr. Norman P. Ramsey: I believe sir that you will find that this philosophy, that is to say, the philosophy of the right to a political philosophy is for example covered by Mr. Kirby in his study for the Bar of the City of New York as respect to matter.

It is covered by a Harvard Law Review Article (Voice Overlap)

Justice William J. Brennan: (Voice Overlap) you can get that whether there were any -- any minutes, any kind of records of what it was the framers recorded as what they had in mind, when they adopted the speech and debate clause, not in its present form?

Mr. Norman P. Ramsey: I do not believe sir that I can falsely represent that there is a specific statement made by one of the framers of the constitution as respect to that.

But certainly, shortly after it is was put into effect as a constitutional provision, it was -- it has been interpreted in effect to retain this right within the political body, if the Court please.

Justice William J. Brennan: But at least we have a history I gather that goes back to 1853 of Congress enacting this form of statute, that relate to the conduct of a --

Mr. Norman P. Ramsey: You do have such the history here, Mr. Justice Brennan, but I would submit that you also have coincident with it.

You have running along side of the 1853 statutes, you have repeated assertions by the Congress or the Houses of the Congress of their right to seek out the alleged bribe taker, the Oath's aims type case, all of which are fully discussed in the historical footnotes in our brief and in 1873, there into the (Inaudible) scandal in depth for the alleged bribery in the Congress, for the Executive not attempting to use the 1853 statute for any prosecution.

You have the repeated assertion of Congress’ right to fulfill its constitutional obligation to discipline its own members sir.

Now, in connection with the 1853 statute, I believe sir that this should be kept in mind. Certainly the 1853 statute was designed to cover situations such as the case, U.S. against Burton, such as the case of U.S. versus Johnson, where the whole thrust forward of the case was on the basis that Johnson had been bought, he was bribed -- he was a bribed Congressman.

That conspiracy element was admittedly the textual basis for the case.

But it was a claimed bribery and the Government advanced many of the same arguments there that are advanced here and they analogized to and reasoned from bribery statutes, including the one which is before us now.

Justice William J. Brennan: Well, but as I recall it, Justice Harlan’s opinion for the Court did reserve this very question?

Mr. Norman P. Ramsey: Justice Harlan certainly did sir and it is (Voice Overlap)

Justice William J. Brennan: Well, I gather that suggests that maybe Johnson did not answer this question.

Mr. Norman P. Ramsey: Well, I am not sure that Justice Harlan by reserving it suggested necessarily that this Court would -- would when it came up, still considered an adequate case.

Justice William J. Brennan: (Voice Overlap) ordinarily we would reserve this question.

I think you try to get over the message that they we are not deciding that question in the (Voice Overlap).

Mr. Norman P. Ramsey: Precisely, and if you have not decided it sir and I submit you can decide yes or you might decide no as the case maybe.

Chief Justice Warren E. Burger: Mr. Ramsey.

Mr. Norman P. Ramsey: Yes sir.

Chief Justice Warren E. Burger: I do not know where this analogy would be helpful or not, but let me try it.

Suppose a Senator or a member of either House was charged, not with receiving a bribe in relation to his official conduct, but with paying a bribe to another member not in the House, but downtown at a hotel or in a restaurant, would you say that he was immune to prosecution?

Mr. Norman P. Ramsey: I think, Mr. Chief Justice, that you are addressing yourself precisely to the set of facts that existed in Oakes Ames case in 1873 when the Congress tried to issue out themselves and the Courts did not intercede, that was the distribution of stock in connection with the Credit Mobilier is set up where 8, 10 or 12 that is spread throughout the Congress as a practical matter and up and down the line, I would say this.

It is seems to me that the House is capable of handling that problem on its own.

It seems to us that the constitution commits that problem to the House of which the man is a member and it seems to us that the constitution interdicts the intercession of the Executive, because the basic situation as we see is this.

To rule or hold otherwise would give such powerful control in the Executive to harass, investigate and generally badger anybody who makes a politically unpopular decision and improper to the Executive, possibly acceptable to the legislative side and always you have in the political forum, you have the concurrence of a need to get elected, the occurrence of campaign funds, the concurrence of visits from constituents, the likelihood that a Congressman's votes will indeed represent him as a silver block senator, as a foreign block senator, as a fishing block senator, all having received campaign contributions from those particular elements of their constituents.

Once you have an affirmative vote and a contribution, we come then to the question of may you put that before a grand jury and say now, we are not suggesting it to you, but you might certainly draw an inference that there is cause and effect.

The threat, the overpowering threat to the freedom of the Congressman which is opposed by that type of a rule, would it seems to us go a long way to destroy the basic fabric of our tripartite form of Government.

Chief Justice Warren E. Burger: But you do not suggest that there is -- that the element of official conduct or conduct within the scope of his office is involved when he is a disperser of the money rather than a receiver, do you?

Mr. Norman P. Ramsey: He would in that instance, it is seems to me, fall within the -- the Solicitor General, excuse me sir, described that the briber not to bribee is the postulate which you are putting to me Mr. Chief Justice as I understand it.

And it seems to me that what you certainly have in that case is probably the ability to get him his principal first degree, no matter which side of the coin he is on, if he occupies his official position.

Though I am not sure that -- I am not sure that which side he is on would make much difference in my professional judgment as respect to possible freedom from or subjection to discipline or a trial as a result of his conduct sir.

I would like to address myself just for a moment if I may to one further aspect of this point with respect to the breadth of a privilege.

I think it is perfectly clear and I think Mr. Justice Brennan’s question to the Solicitor General makes it clear and the concession at page 11 of the Government’s brief that what is covered by the speech or debate clause or committee report’s resolutions and the act of voting “as or things generally done in the session of the House by one of its members in relation to the business before it” and I am taking that quote directly out of this Court’s opinion in the Powell case and it of course carries forward a series of other decisions which are antecedent, going all the way back to some of the landmark decisions in the early days, shortly after the constitution was adopted and at a time when it may reasonably be thought that the judges who were writing about it had reason to know basically what was in the mind of the framers.

Insofar as the 1853 Act is concerned, we say this.

Very simply, the 1853 Act could constitute a perfectly proper exercise of Congressional authority without coming into conflict of speech or debate, if it is limited in its impact to situations where a Senator may or did receive moneys in connection with executive conduct or conduct relating to the judiciary, but not in connection with legislation.

And it is there, again, coming back Mr.Chief Justice to the question which you put to me sir, it is there that we come back to say that is within the ambit of the House of which he is a member, it is without the ambit of the judiciary and the executive.

And looking at the 1853 Act and looking at the 1962 revision of it, we most respectfully urge that in each of those instances, this can be given constitutional validity in its broad range to protect against bribery, but that the executive and judiciary should withhold their hands where they intrude in to what might be called the basic defensive mechanism given by the constitution to the members of the Congress of the United States.

Chief Justice Warren E. Burger: How far would you carry these terms or other comments, Mr. Ramsey?

You remember historically years ago more or less some members of the Congress struck each other, challenged each other to duels, actually shot each other, is there immunity from constitution there across the board?

Mr. Norman P. Ramsey: As a practical matter, all of those you will recall are in the House of Senate proceedings and they were frequently had called the task particularly at about the time of civil war.

They were called to task for challenging to duels where fist to cuts on the floors of the various Houses of Congress and basically I would say that that is not covered by speech or debate or by this Court's interpretation a speech or debate.

Now, again on the other side of that, it is clearly within the House's power to punish unseemly behavior on the floor of its legislative hall.

Chief Justice Warren E. Burger: The question is, is it beyond the power of the executive?

Mr. Norman P. Ramsey: I would think sir, it would probably in most instances fall outside the scope which I contend for the speech or debate clause as interpreted by this Court which --

Justice William J. Brennan: Let us say then Mr. Ramsey that if there were a statute in which punishing assault by one Congressman upon another and provided that the punishment should be by the judiciary in the form of a prosecution, you would say that that would be constitutional?

Mr. Norman P. Ramsey: I would think that it would sir because I think it would fall outside the definition of things ordinarily done in the session of the Houses of which they are a member.

In other words, I simply cannot read bodily assault into it.

Now, I would say contrary was Mr. Justice Brennan, that what would occur would be that the house itself to take immediate steps and there will be a little need for the judiciary or the executive ever to concern itself with that type of a situation.

Justice William J. Brennan: We would take rather outlandish hypothetical.

One wanted to vote a Congressman, a Senator wanted to vote in a certain way and for some reason or the other (Inaudible) a fellow senator who was on (Inaudible).

Is the recording of that (Inaudible) his announcement of it, so he got a gun and shot the senator standing in his way.

Mr. Norman P. Ramsey: I have no doubt this Court within the due course find that that is perfectly appropriate case of criminal proceeding.

Justice William J. Brennan: That was not the -- you know what was involved, there was an attempted interference with his vote, you would say that would not cover those people?

Mr. Norman P. Ramsey: I would say and I think that is correct sir because I think that this is an extreme mean used to rectify an error made which could otherwise be rectified without the need for physical violence and I think as a practical matter Mr. Justice Brennan, we may be debating something which possibly we do not even have to debate in that it may well be that because it occurred on federal property, you might reasonably be able to apply 1018 to a murder for example which occurred under circumstances Mr. Justice had outlined, a general criminal statute, that this not being within the ambient a speech or debate hence permissible.

Justice Byron R. White: I take it to your position is that immunity of Congressman and Senators is defined by the speech or debate clause and there is no separate doctrine aside from that of legislative immunity?

Mr. Norman P. Ramsey: I am directing my attention Justice White to only speech or debate as interpreted by this Court as sufficient to cover this particular case.

I am not arguing a general legislative community as substance.

Justice Byron R. White: Would you read the Dombrowski against Eastland as suggesting that there is a doctrine of legislative immunity aside from the speech or debate clause?

Mr. Norman P. Ramsey: Well, I suppose on Dombrowski against Eastland can be read for that.

It was focused more on the right of the staff members to, shall we say, have the benefit of.

Justice Byron R. White: Yes, but there was a question of the immunity of the Senator?

Mr. Norman P. Ramsey: Yes sir.

There was.

There definitely was.

Justice Byron R. White: Generally speaking, the doctrine of legislate immunity is one that is applicable to immunize a defendant in a civil action, is it not that correct?

Mr. Norman P. Ramsey: That was Dombrowski of course sir --

Justice Byron R. White: (Voice Overlap) it is not generally been considered to be a doctrine applicable --

Mr. Norman P. Ramsey: No, of course although --

Justice Byron R. White: (Voice Overlap) criminal law?

Mr. Norman P. Ramsey: Civil as distinct from criminal.

So in both of those instances you were talking, I think we invariably find in the opinions Mr. Justice White, you invariably find discussions which tend to talk in terms of legislative immunity of a short hand form of referring to what is given or the protection accorded under given a set of circumstances and we most frequently see them in the context of liable suits in which we frequently see them in the context.

Justice Byron R. White: Did legislative, I mean the speech or debate clause that protects the Congressman or Senator against Civil liability as well as criminal.

As a matter of fact I suppose protection against liable was a major function as indeed (Voice Overlap)

Mr. Norman P. Ramsey: I would expect so sir.

Yes.

It may not be questioned in any other place as I say it is not a word really which is one of the terms we are accustomed to and as the Chief Justice said in lower Court opinion in Powell in connection with that, it may not be questioned has implicit in it, it need not answer.

This is -- it is a word.

It has more meaning really than our standard words which go to privilege.

It speaks in terms of or speech or debate, he may not be questioned in any other place and the historical antecedents of it very clearly indicate that they were talking about Courts in the older days, they were talking about Courts in our early charter provisions and our early State Constitutions, that is exactly what they had in mind.

Justice Byron R. White: Well, let us take the Powell case which is probably as broader statement of a speech or debate clause covers as any.

Mr. Norman P. Ramsey: Yes sir.

Justice Byron R. White: At least that picked up prior cases, you said.

Mr. Norman P. Ramsey: That is correct sir.

Justice Byron R. White: And that the clause arose in that case, the context of the claim against Congressman in the civil context.

Mr. Norman P. Ramsey: That is correct.

Of course that were was the exclusion of the Congressman from the Congress, question of the liability of it whether is in the house for their conduct in that connection sir.

Justice Byron R. White: You think the speech or debate clause should have the same construction in civil and criminal context?

Mr. Norman P. Ramsey: I think it is a practical matter Mr. Justice White, it has an even a broader application in the criminal context because of its antecedents.

If parliamentary antecedents with the fears of torture, the fears of commitment to the power, the fears of imprisonment which were used to dominate the members of parliament, we brought that forward into our structure as it came into our articles confederation and that is into our constitution, largely to keep the executive from dominating the legislator.

Therefore, to me speech or debate, the crux of its historical antecedent has even greater application in the criminal field because that was one of the major things which the framers were attempting to protect the legislator against was intimidation by threat of grand jury, by threat of even a baseless indictment which been read a political being.

Chief Justice Warren E. Burger: I think it just to pursue that one hypothetical that you have conceded that if one member arranged to kidnap or otherwise coerce a member from going to the floor to vote, he did this downtown that that would be subject to ordinary prosecutions, criminal prosecutions, conduct the House, but that if he hands in an envelope with a lot of money in it to do the same thing that somehow then becomes connected with official duty?

Mr. Norman P. Ramsey: I think Mr. Chief Justice, the point which I make as respect to that is this.

One has to do with conduct, physical conduct if the Court please, the other has to do with attempting to motivate.

Chief Justice Warren E. Burger: Let us just make it a threat then, a threat of physical violence, not the actual physical violence?

Mr. Norman P. Ramsey: Well, I am unclear in the hypothetical which the Court puts to me.

Who would be the subject matter of the indictment, the man who made the threat?

Chief Justice Warren E. Burger: The threatenor and the bribor, the man who was threatening or giving the bribe not the receiver?

Mr. Norman P. Ramsey: Not the receiver.

In that connection, I would take the position that the threatenor should be subject to and I am sure it would be subject to criminal prosecution.

If you were attempting to inquire into why the man who got the bribe voted, a motivation of being the question which you would be posing in order to prove the bribe, I would think that you would have a interdiction of a speech or debate clause as against inquiry into the acceptor’s motivations sir.

Now, contrary why the man who gives the bribe, you are not inquiring into his motive as respect they vote.

You are inquiring into his attempting to motivate another and somewhere between those two explains would lie the line of determination where I believe this Court would say no as to the recipient, if you are trying to prove his motive and yes as to the bribe giver if you are attempting to prove that he was instituting conduct which would motivate another.

Justice Byron R. White: Mr. Ramsey.

Mr. Norman P. Ramsey: Yes Mr. Justice White?

Justice Byron R. White: Let us assume there an instance like involved in this case takes place and the Congress then by the particular house involved by resolution unanimously passed as we waive any right to punish the member and let authority proceeding against him under the criminal laws?

Mr. Norman P. Ramsey: I would say Mr. Justice White the answer to that has got to be in the basic for the clause.

Assume that the House may give up its prerogative so to speak, but I think the Court must look deeper.

The prerogative is not there only to protect that House.

They put there to protect the persons who elected the members of that house as well as the members.

Justice Byron R. White: Well, the House could not do that could not that a fortiori, could not do what it has done here?

Mr. Norman P. Ramsey: There are some harping at Judge Hart's colloquy in the Government's brief, but Judge Hart put a similar posture in the colloquy before the Court, the lower Court and I think that this is the reasoning which the lower Court was using, if they cannot do it, how they can combine with another House which has no power over their members and give up this right which frankly as bottomed on the right of the people's representative to be protected in freedom of speech, freedom of debate and as that clause has been interpreted by this Court through the years.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Ramsey.

Mr. Solicitor General you have about three minutes.

Rebuttal of Griswold

Mr. Griswold: Thank you, Mr. Chief Justice.

Unless this Court is prepared to hold that Congress has no constitutional power to make it a crime for a congressman or senator to accept a bribe for any sort of conduct with respect to his legislative responsibilities, I believe that this judgment should be reversed.

Justice Byron R. White: Well, they did not make it a crime Mr. Solicitor General that provides for the trial of the member in the House or the Senate?

Mr. Griswold: When I said make it a crime, I meant a crime in the traditional sense by indictment by a grand jury and prosecution in Court.

There is not any doubt that either House has the power to subject to penalty or to expel a member who does anything which the House thinks warrants that.

There is a further problem which is been referred to in the cases which is as far as the House of Representatives is concerned, imprisonment can extend only until the termination of that session of the House and that if the bribery was not found until in the old days that is 2nd of March, you have to hold the trial and he would be release on the 04th of March whenever the Congress expires.

Moreover, it is perfectly clear that the practical problems with respect to trial of these matters before the House or the Senate are difficult.

A fair trial of one of these matters might be complicated, might take the time for a month of the Congressman and the Senators and I repeat, if Congress chooses to allocate that to the regular Courts, unless the Court is prepared to hold that Congress cannot constitutionally do that, this judgment should be reversed.

I would repeat --

Justice Byron R. White: The Congress here is not only allocated the job that it ask of actual trial, but the decision of whether to proceed --

Mr. Griswold: Yes, Mr. Justice that.

Justice Byron R. White: -- to the executive branch of the Government.

Mr. Griswold: That is true and that point is made that with respect to the contempt of a witness that it does require a resolution of the House on recommendation from the committee before it goes to the executive for proper action --

Justice Harry A. Blackmun: But that is not required in this instance?

Mr. Griswold: And that is not required in this instance.

Justice Harry A. Blackmun: Well, Mr. Solicitor General may I ask you now.

I take it that goes as far as I suppose the Senate unanimously have adopted a resolution that we do not wish to call a Senator Brewster into account for misconduct, nevertheless I gather the that the executive (Inaudible)

Mr. Griswold: It would be our position that the executive could go ahead under this statute and I repeat our position is that unless the Court is prepared to hold, that Congress has no constitutional power to make it a crime for a congressman or senator to accept a bribe for a legislative conduct, this judgment should be reversed.

Let me refer to the fact that the statute in this case as it now stands makes no reference whatever to vote.

It simply says, if before him in his official capacity and though I do not need to go so far, I think that a conviction could be sustained under this indictment without any showing as to how a senator Brewster voted on any matter or indeed without any evidence that he voted at all.

Finally, I would call attention to the fact that there was a concurring opinion in the Johnson case by Chief Justice Warren and in which justices Brennan and Douglas concurred, which proceeded on the narrow ground of the extensive use of the speech in that case, thus there is nothing there decided beyond that by anything except a four to three decision and our position is that the problem of this case was not only expressly left open, but a considerable intimation that the Court did not think that it should go as far in construing this rather simple language of the speech and debate clause as to make it impossible for Congress by statute to make it a crime for a congressman or senator to accept the bribe.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Thank you Mr. Ramsey.

The case is submitted.

Print this transcript Transcript: 

Argument of Erwin Griswold

Chief Justice Warren E. Burger: We’ll hear arguments next in number 70-45, United States against Brewster.

Mr. Solicitor General.

Mr. Erwin Griswold: May it please the Court.

This case is here on reargument.

It is a direct appeal from a decision of the United States District Court for the District of Columbia dismissing an indictment on constitutional grounds.

The indictment appears beginning on page 1 of the appendix.

It consists of nine counts or ten counts.

The odd numbered ones of which relate to the defendant former Senator Brewster.

The even numbered counts are not before the Court at all and the first count may be taken as for the purposes of this appeal as typical of the rest raising the question which was decided.

The first allegation in the account is that at all times here after mentioned in this indictment, Daniel B. Brewster was a public official that is a member of the Senate of the Untied States from the State of Maryland.

And then over on page 2 of the indictment are the principal allegation of the first count is that Daniel B. Brewster being a public official, acting for and on behalf thereof directly and indirectly corruptly as solicited, sought, accepted, received and agreed to receive the sum of $5,000.00 for himself and for an entity in return for being influenced in his performance of official acts in respect to his action, route and decision on postage rate legislation which might at any time be pending before him in his official capacity and in his place of trust and profit in violation of Section 201 (c) (1) and 2, Title 18, United States Code.

After the indictment was found, defendant through his counsel filed a motion to dismiss the indictment.

In fact two motions dismissed, but the only one that’s here is the one which appears on page 8 of the appendix.

And the motion to dismiss, the odd numbered counts of the indictment was on the ground that in each such count, the defendant is charged with being influenced in his performance of official acts in his capacity as a United States Senator.

And then finally the third reason of the motion to dismiss each count of the indictment as charged against this defendant violates the provision of Article 1, Section 6 of the United States Constitution which is the Speech and Debate Clause which it will be remembered, said in in rather simple terms that for any speech or debate in either House Senators or Representatives shall not be questioned in any other place.

The language, the important language here is, in a speech or debate in either House.

And then the order of the Court from which this appeal is taken appears on page 34 of the appendix ordered that the defendant's motion be granted and the indictment be and hereby is dismissed as to the defendant Brewster for the reason stated orally by the Court at the hearing on October 9, 1970.

And those reasons appear on the preceding page, page 33 where the Court said, “Gentleman, based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.”

Now I suggest that that’s simply a paraphrase of exactly what the indictment says.

And then it is the opinion of the Court that the immunity under the Speech and Debate Clause of the constitution, particularly in view of the interpretation given that clause by the Supreme Court in Johnson’s shields Senator Brewster, constitutionally shields him from any prosecution for alleged bribery to perform a legislative act.

The question of the jurisdiction of this appeal has been deferred to the hearing of the merits of -- I find it myself somewhat difficult to see that there is doubt as to the jurisdiction of the appeal.

This arises under the old version of the Criminal Appeal’s Act, since the indictment was found here before January 1971 and it seems to us that this appeal comes under two of the clauses of that statute.

There is a suggestion in Mr. Ramsey’s brief that for some reason the statute is not applicable because of a reference to a conference memorandum which was said to be before the judge.

It is not in the appendix.

I have never seen it.

I would like to suggest that with respect to it that there is no procedure for summary judgment in the rules of criminal procedure.

I think that there is a sort of spillover here because we're familiar with the summary judgment and the rules of civil procedure that this is in some way a decision on a summary judgment, but I know of no procedure and the rules of criminal procedure for summary judgment.

And then I would like to suggest and Mr. Ramsey says that this was the equivalent of an acquittal.

I would like to point out that no jury had been impaneled, no trial had been commenced, and I would like to suggest that as far as anything that I have heard of in the law of criminal procedure, so far there cannot be an acquittal, except at a trial that is until a jury has been impaneled.

Now, this becomes a little complicated in the case of a trial without jury, but I still suggest that there cannot be an acquittal without a trial that is that the commencement of trial without a jury is a rather formal act, likely impaneling of a jury and requires among other things that the right to trial by jury has been waived.

There was no such waiver here and there was no trial.

There cannot be double jeopardy until there has been jeopardy.

I hear no jury had been empanelled and jeopardy had not attached.

I would like--in closing the jurisdictional part of my argument to refer to decisions of this Court, which are not cited in my brief.

One of them, the first of them is cited in an early brief of Mr. Ramsey, though for another point.

That is the case of United States against Fruehauf in 365 U.S.

Where the situation is almost exactly parallel to that here.

There had been memoranda before the District Court.

There was a direct appeal to this Court under the Criminal Appeals Act.

If the position taken now by Mr. Ramsey is correct, even assuming that the conference memorandum to which he refers is a part of the record here that appeal should have been dismissed on the ground that there had been a decision under summary judgment or an acquittal.

That the decision -- not only that appeal, not only was not dismissed, but the case was sent back to the District Court for trial.

And then another case which is not cited in our brief, but it is so closely parallel that I think it is appropriate to mention in here, United States against Halseth, that is 342 U.S. 277, where it appeared that there had been stipulation in the District Court.

And there again, if the decision of the Court with respect to that stipulation had amounted to an acquittal or a decision on a summary judgment, the appeal should have been dismissed, but the appeal was not dismissed.

Both of these cases are discussed in Mr. Justice Harlan’s opinion in the United States against Sisson in 399 U.S.

But I would point out that the Sisson case is clearly inapplicable here because there had been a full trial and the judges’ decision which amounted to the entry of a judgment, not withstanding the verdict was based on facts which appeared at the trial.

Thus, jeopardy had attached and the basis for an appeal was removed as was held in the Simmons case itself.

Now, turning to the merits here, the case is of course the step beyond the Court’s decision in United States against Johnson which was decided some six years ago.

The appellee relies on the Johnson decision, but I think that it is by its own terms inapplicable here.

With the benefit of hindsight, one can say that the Johnson case was an unfortunate case to bring before the Court.

The charge there was under the conspiracy statute which is a very general statute.

While the charge here is under a bribery statute, one which with respect to Congressmen and Senators has a continuous history going back to 1853, 119 years during which time Congress has expressly said that when a Congressman or a Senator accepts a bribe, he should be subject to prosecution through the regular procedures of the criminal courts.

But in the Johnson case as well, not much concern was given about the Speech or Debate Clause in initiating the prosecution or in carrying it out.

In that case, the indictment contained a specific reference to the Speech and Debate Clause which was quoted at some length in the Court’s opinion.

This is on page 184 and paragraph 15 of the indictment said it was party said conspiracy that the said Thomas F. Johnson should render services for compensation to whip the making of a speech defending the operations of Maryland Saving Loan Associations and so on.

Chief Justice Warren E. Burger: Mr. Solicitor General, do you recall whether in the Johnson case, there was a motion in the Trial Court challenging the indictment on that specific ground?

Mr. Erwin Griswold: I do not recall Mr. Chief Justice.

I do not believe that it appears anywhere in the opinion of this Court.

I have not searched through the record as to what was done in the District Court.

Not only was this in the indictment, but at the trial itself, some 50 pages of the transcript related to the speech in the case presented by the Government and having been so opened up by the Government, there was much more about the speech in the presentation of the defense.

The government introduced a copy of the speech in evidence and devoted substantial argument to the preposition that the nature of the conspiracy was that the speech should be delivered in order that it could be reprinted and distributed among appropriate persons in Maryland.

Now, with respect to the Johnson case.

It is very significant that the opinion was narrowly guarded on page 184 of the opinion.

The Court said, "Whatever room the constitution may allow for such factors in the context of a different kind of prosecution."

And this of course is a bribery prosecution, not a conspiracy prosecution.

And then on page 185, the Court said, "We emphasize that our holding is limited to prosecutions involving circumstances as those presented in the case before us.

We expressly leave open for consideration when the case arises a prosecution which though possibly entailing inquiry in the legislative acts on motivations is founded upon a nearly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members."

Then I think it’s not irrelevant to point out those three members of the Court, Chief Justice Warren and Justices Douglas and Brennan concurred only in the limited holding of the Court that the use of the Congressman speech during this particular trial within examination into its authorship, motivation and content, it was violative of the speech or debate clause.

Two members of the Court took no part in the case, so that there were only four Justices who concurred in anything broader than the limited holding referred to in Chief Justice Warren’s opinion.

Now, there’s nothing like this in this case.

There is no speech at all.

Indeed as I’ve indicated, there’s no evidence before the Court, there was no examination into the authorship, motivation and content of any speech.

There is a reference in each count to the effect that Senator Brewster is charged with taking a bribe and I quote “In return for being influenced in his performance of official acts in respect of to his action, vote and decision on postage rate legislation.”

Chief Justice Warren E. Burger: Mr. Solicitor General, supposed under this indictment case were tried and the defendant established that he voted not at all absented himself or abstained or voted contrary to the agreement charge with that -- if never the less a bribe had been paid would that undermine the case, the Government’s case?

Mr. Erwin Griswold: I think not Mr. Chief Justice if the defendant was the one who brought that out.

I am a little concerned if the prosecution relies on a vote.

Chief Justice Warren E. Burger: I am assuming the defendant would be the one who --

Mr. Erwin Griswold: If the defendant brings it out, I assume he can waive –- well I don’t know, it says, shall not be questioned unless he relies on it.

I find it hard to see how he can complain that he is being questioned.

I would think certainly under the Johnson case, it is clear that the Government cannot maintain the prosecution if it relies directly on the giving of a speech.

There is some reference in the opinion to tangential use.

I do not quite know just what tangential use means.

I would think that it might perhaps be within that language if it were shown that there was a speech, but if the text of the speech was not relied on and if the motivation and authorship of the speech were not gone into.

But I would suggest Mr. Chief Justice that this indictment at this stage can be sustained without answering these questions.

I don’t know just where the line is.

I know that the constitution says speech or debate in either House and I don’t think that is broad enough or ought to be held to be broad enough to cover things which occur outside of sessions of the house which might be construed to include sessions of committees.

Committee may be for this purpose is something done in the house.

It doesn’t say both, but I am troubled about vote and there are opinions of the Court which have indicated, though I do not think actually decided that vote may be enough.

But this indictment charges him of receiving a bribe for being influenced in his performance of official acts.

In respect to his action, vote and decision, on postage rate legislation or I suppose we strikeout votes, supposed we say that can’t be referred to, I don’t conceded that, but let’s strike it out.

There is still plenty in this indictment and the evidence of the trial may show nothing relating to a vote.

There is no charge with respect to his speech which is the only thing to which the Johnson case applies.

And unless the Court is prepared to hold that nothing that a senator does as a senator can be questioned in any other place under the speech and debate clause, a result prior beyond anything that has ever yet been decided.

It seems to me that there is no basis for holding that this indictment of itself without any evidence is in violation of the Speech and Debate clause.

Our position --

Justice Thurgood Marshall: Mr. Solicitor General, the difference in those speech involved in act and wouldn’t it be true that if the Senator took the $5,000.00 and the next day the bill was withdrawn from Congress, he couldn’t have voted or done anything on.

He would still be getting [Voice Overlap]

Mr. Erwin Griswold: Yes, Mr. Justice Marshall.

It would be our position that the crime is committed when the bribe is either solicited or received.

He doesn’t have to receive it with the requisite intent and that it is not necessary to prove that there was in fact any legislative act of any kind.

And, I think that becomes quite clear when you consider the solicitation language in the statute ask, demands, seeks, solicits any bribe it would not be possible to prosecute the solicitation of a bribe if the other construction of the statute is taken until you waited to see whether he did something.

And as I have tried to develop in the supplemental brief which we have filed, I think that a prosecution under this statute can be maintained and that the indictment is sufficient without the showing of any speech or debate of any kind, without the showing of any action.

If there is evidence which can show that at the time he solicited or received the bribe, he intended to take legislative action in accordance with the bribes request.

Chief Justice Warren E. Burger: Mr. Ramsey.

Argument of Norman P. Ramsey

Mr. Norman P. Ramsey: Mr. Chief Justice and may it please the Court.

I should like to address myself first to the suggestion made by the Solicitor General in his closing comments.

First, I would request to the Court that attention be given to the five particular subject matter which is now asserted by the Solicitor General was never argued below.

It was not the textural aspect of the case when it was before the District Judge.

What was before the District Judge was perfectly clearly set forth in connection with the debate in colloquy and in connection with the record of the case as it there existed.

Government counsel there said that under this indictment and I am quoting from page 28 of the record extract.

We are not contending that what is being charged here, that is the activity by Brewster was anything other than a legislative act.

We are not ducking the question, it is squarely presented.

They are legislative acts.

We are not going to quibble over that.

Now, the important point to this case as we see it is this, this case does not test the outer limits of speech or debate.

This case falls squarely within the hard core of speech or debate.

In the earlier arguments and in the brief that the Government which is earlier submitted in this case, the Government conceded that while the precise limits of Johnson may be a little vague, “we do not contend that the clause for text only speech.”

And then they went back to two formal holdings of this Court in the Powell case and in the Kilbourn case, committee reports, resolutions, any act of voting are equally covered as are “things generally done in a session of the House by one of its members in relation to the business before it.”

That has never been a doubted proposition.

It was against the text of that and this Court’s clause as it’s imposed it on the Speech or Debate Clause.

The District Judge Hart made his decision against the background of that he plays an indictment which followed as the Solicitor General has candidly conceded to the Court and into question, official conduct in the nature of action, vote and decision.

Now this illusive memorandum of conferences was known to trial counsel below and certainly appellate counsel are charged with knowledge of what trial counsel did know.

All we put that before the Court before in the first instance was to make the Court aware that this case was not decided in a vacuum.

That there was justification for the comment by Judge Hart “based on the facts of this case” that this was not decided in the abstract.

As one of the Justices --

Chief Justice Warren E. Burger: You’re saying it was not decided on the indictment?

Mr. Norman P. Ramsey: It was not decided in the abstract.

Chief Justice Warren E. Burger: On the indictment?

Mr. Norman P. Ramsey: Well, I am coming to that sir.

As one of the justices, Mr. Chief Justice inquired before, I think it was Justice Stewart.

Did not the indictment say action, vote or decision?

And it did sir, but that was simply clarified and in that regard, our position in that matter is this, basically when a Congressman using, of course that is general phraseology, when a Congressman is accused of improper conduct, improper motivation, then there must come at some point in the preceding when either before the Grand Jury action is brought to stop improper intrusion into areas covered by speech or debate or if after indictment when a Trial Court has occasion to have access to the precise facts upon which the application of speech or debate is made apparent.

We say that that is what happened in this particular case.

It was not challenged at the Grand Jury level as this true in another case currently pending and as to which I will make no detailed comment, but it was challenged by a 12 (b) (1) motion as soon as it could be.

That is to say, we put before the Court and the Government cooperated in putting before the Court that what was being questioned in this case was legislative conduct, not the postulated absence of legislative conduct.

Justice Thurgood Marshall: But what phase of legislative conduct is the taking of a bribe?

Mr. Norman P. Ramsey: It is, Mr. Justice Marshall, my answer to that would not be a direct when it would be this sir.

You would be testing motivation if you say that a given phase of legislative conduct whether it be committee discussion, whether it be a report written by a given Congressman was motivated in one way or by one set of circumstances.

You then fall within the ambit of speech or debate.

Justice Thurgood Marshall: But what has speech and debate got to do with taking a bribe?

Mr. Norman P. Ramsey: The taking of the bribe is in the concept of an indictment like that before this Court sir.

Justice Thurgood Marshall: Well, is speech or debate mentioned in the indictment?

Mr. Norman P. Ramsey: Oh!

No, it’s not.

You are asking me sir whether it is said in indictment that a particular speech was made as a --

Justice Thurgood Marshall: No, does the word speech or debate or anything closely resembling it in the indictment which is the one thing that we have before us?

Mr. Norman P. Ramsey: Now, I will have to answer that directly sir, that is not in the indictment.

Justice Thurgood Marshall: And that’s all we have [Voice Overlap] is that he took a bribe, even if he never made a speech about anything.

Mr. Norman P. Ramsey: Well, I respectfully submit Mr. Justice Marshall.

Justice Thurgood Marshall: As in understand, your position when the member of Congress takes a bribe of any amount of money and then makes a speech, he is in a different category from anybody else in the United States?

Mr. Norman P. Ramsey: No, he is in the same category as any other Congressman who does the same thing that’s subject to penalty in his own House, which has the right to question him.

But he is to be questioned in no other place if the language is keen to debates sir.

Justice Thurgood Marshall: Can he raise that if he doesn’t make a speech?

Mr. Norman P. Ramsey: If he does not make a speech, then we are back to the inquiry of the breadth of speech or debate, are we strictly talking speech or debate?

And we say since Kilbourn in 1881 (Voice Overlap)

Justice Thurgood Marshall: So far as I am concerned, my ambit of speech and debate at least stops at the bribe.[Laughter]

Mr. Norman P. Ramsey: Let me put it this way Mr. Justice Marshall --

Justice Thurgood Marshall: This is like a freedom of speech case.

A man has a right of freedom of speech but that doesn't give him the right to act illegally.

And this is the act solely, the act of taking a bribe.

That’s the only thing involved in this case.

And don’t you agree that that point was left opened in Johnson?

Mr. Norman P. Ramsey: No, I would say, what was left opened in Johnson, Mr. Justice Marshall was the issue of whether there was an outer perameter where this Court, will say that speech or debate does not protect.

But in this instant case, speech or debate has an applicable principle was conceded before the lower court.

Now, the practical matter, the issue is posed in this fashion in the lower court.

They say, we say it was legislative activity.

They would motivate it in his legislative conduct by the acceptance of improper sums of money.

We say, and this is the trust in lower court and also in the government’s original brief in this Court, that this however falls out of that heartland of speech or debate and is within the exclusion which this Court reserved when Johnson was decided.

We say to the contrary that on that issue as posed before the lower court that what was done in this case and the facts that alleged in this case falls squarely within what was covered by Johnson and do not fall with any exclusion.

We do not say that it is not possible to postulate a situation which will take it to the outer limit or speech or debate and beyond the outer limit of speech or debate, so that there may be an indictable crime.

But as was said in the Johnson case, it is our position that speech or debate extends at least so far as, and that is the language of this court in our opinion.

And we say it does clearly extends so far as to protect against inquiry as respects legislative acts under the circumstances of this case, and that is the way in which this whole issue came up.

These assumptions, these hypotheses, these hypothetical illustrations were never part of the case when it was before Judge Hart.

And there is no doubt in my mind that this Court can and will, on some occasion, take the Speech or Debate Clause, analyze and find it without application to certain sets of conducts as for example in Burton and as in Johnson, where the conduct is not related to legislative act but it is related to executive.

We agree that that is the fast ruling of this Court --

Chief Justice Warren E. Burger: But is it not a routine function of Congressman to advocate propositions and to importune officers of the Executive Branch to do one thing or another for their constituents?

Mr. Norman P. Ramsey: I suggest sir that Senator Burton would have love to have Chief Justice express similar opinions back at the time of this case, but I think that decided, I think that the executive --

Chief Justice Warren E. Burger: I’m speaking of the factual matter, isn’t that--?

Mr. Norman P. Ramsey: But it is not a legislative conduct as (Inaudible).

The legislative process, turning as it does necessarily to the absorption of the representative, by of his various constituents’ wishes and desires of the need to represent them in connection with subject matter which come before for political judgments and for judgments as respect to policy, he must be free and he is indeed free.

And this is a significant aspect and the significant posture of a senator or a congressman in this regard.

He must always be open to suggestion, to pressure.

He must always be open to the possibility that an executive desiring to penalized someone who has voted against the executive, may wish to posture him against his voting record, with his list of contributors, with an inference to follow, if unfriendly Grand Jury chooses to draw it, that there is a necessary connection between the assemblage of the money necessary to win a campaign and the favorable votes be it on fishing, be it on oil, be it on what may it be.

Chief Justice Warren E. Burger: Now you spoke, Mr. Ramsey, of some of these hypothetical situations not being before the Court, the District Court, which is of course true, but that’s because, in part, no evidence was taken.

The case never reached that point, is that not so?

Mr. Norman P. Ramsey: It is because, if you please Mr. Chief Justice, it is because the government postured its case before the District Judge and said, we expect to prove this case by proving legislative acts of Senator Brewster and the judge took their representation if this was so, it became a concession of record and it was a concession predicated on known facts, known to the judge, known to counsel, and his opinion expressly stated based on that facts of this case, so that it was not simply a case of taking up hypotheticals.

The Government had not postured either its indictment or it is a presentation on the hypothetical ability to reach outside and find some circumstance which we permit the drawing of a claim that it was outside speech or debate.

It had challenged the lower court by bringing in any indictment squarely designed to fall within speech or debate as Johnson defined it and put the issue to the District Judge to say that this was a narrowly drawn statute.

That’s exactly the way they attend to the posture it, sir.

Now under those circumstances, it was clean and clear that they post the issue to the Trial Court, are you now willing to say that if we take a statute which we deemed to be a precise narrowly drawn statute that you will say that speech or debate must surrender to it.

And that was the way it was before the Court and the facts were before the Court at what was being challenged with legislative conduct of the senator.

Justice William H. Rehnquist: Mr. Ramsey --

Mr. Norman P. Ramsey: Yes, sir.

Justice William H. Rehnquist: Isn’t the logical import vote of Judge Hart’s ruling below and of your argument here that Congress cannot, under any circumstances, provide with the a judicial prosecution of the taking of a bribe by a member of Congress?

Mr. Norman P. Ramsey: Mr. Justice Rehnquist, I do not believe that that is a necessary corollary.

I think, by the reservation which was made by the Court in Johnson, it was indicated that there might be an area where such a bribe could be penalized.

We argue as you are aware sir, in our brief, that it being a power granted to each of the houses, to inquire into motivation of members and not granted to the Houses as Houses of Congress to legislate on generally, that they cannot take away the power which the people gave or the protection that people gave their representative.

But coming pass that point, I would say sir that, in for example, the bribed Congressman’s immunity from prosecution which is common in all private law review fights extensively and is one the leading works dealing with the subject matter.

Now, the suggestion made that a properly drawn statute might be structured which could permit it.

We are somewhat ambivalent on that, since we argue that there is no constitutional power to delegate that right, the Section 5 right, over to the Courts for inquiry.

But basically I would say, yes there may be a chance, Mr. Justice Rehnquist where it could be done.

Justice William H. Rehnquist: What sort of a situation would that be consistent with your own position?

Mr. Norman P. Ramsey: Well, as a practical matter, I would think that some of the -- in the first argument in this case we have a series of hypothetical questions to counsel for the appellee and it was an attempt really to move away from the heartland of speech or debate, and outward.

Mr. Justice Marshall poses a somewhat similar problem.

Are we at the outer limits of speech or debate, where a bribe is a accepted and agreed to where there is no need to introduce any evidence concerning official action taken, any official vote given, any official resolution granted, any official speech given, are we going to reach the point where that the Court will now say, you are sufficiently away from inquiry and the legislative acts that we should sustain the prosecution?

Justice William H. Rehnquist: Well, do you mean that there would be a permission for the government to prove an agreement of the nature you’ve just described so long as there’s no need to any inquiry whether it was performed or not?

Mr. Norman P. Ramsey: Well, I would say that, I understood your question to be sir, if I could postulate a circumstance.

I am not saying that it is only circumstance.

I would suggest this to you sir, that if the indictment was premised on a set of facts which would permit proof, that a given man had agreed to take a given bribe and then he did nothing that you might possibly be able to sustain the indictment because the agreement itself constituted the bribe.

But, where you have, on the other end of the edge line, that is to say that he was alleged to have taking a bribe to be motivated to vote for and did vote for, then you open up inquiry and to the very area of his conduct which is proscribed by speech or debate.

Justice William H. Rehnquist: Well, take your first case where you say he took a bribe and did nothing, certainly bribes aren’t given without some contractual understanding of a performance.

Even in your first case where he did nothing, there would have to be in an agreement by him to do something and it would not be a bribe as one commonly understands.

Mr. Norman P. Ramsey: Well, this is why the outer limits of the problem as I say.

We focus our attention on them as wholly by virtue of hypotheticals from various Justices of the last hearing.

We think that focuses on the wrong issue in the case that is not this case as we can see.

This case is differently postured.

Justice William H. Rehnquist: But we got to apply some sort of a rational standard that is capable of being applied not just to this case but to other cases too in order to reach a result, don’t we?

Mr. Norman P. Ramsey: I quite agree that the Court is correct in trying to test the outer reach of any decision which it makes.

But I remind you sir that this case is before the Court under the Criminal Appeals Act on the facts of this case.

Justice Thurgood Marshall: On the facts of this case is an allegation in the indictment that he did vote that way?

No?

It’s nothing in there that says -- am I right?

Mr. Norman P. Ramsey: That there is something in the record of this.

\Not in the indictment sir.

I have never been in that provision.

Justice Thurgood Marshall: Unless it’s before us.

Is the indictment was before us.

Mr. Norman P. Ramsey: I am sorry sir?

Justice Thurgood Marshall: The indictment is all we have?

Mr. Norman P. Ramsey: No, I do not believe that the indictment is all we have Mr. Justice Marshall that has been our point.

The indictment clearly does cover action, vote, and decision.

In other words, the indictment says--

Justice Thurgood Marshall: I thought the indictment covered what he said he was going to do.

The indictment did not say he did it.

Mr. Norman P. Ramsey: The indictment covers his action (Voice Overlap)

Justice Thurgood Marshall: Well, suppose the Senator had taken money, $5,000.00 from each side, would he be covered?

Mr. Norman P. Ramsey: You postulated the same hypothetical to me at the last theory and again I would have to give you, Mr. Justice Marshall, the same answer which I gave.

It depends on whether this indictment which is challenged and which is before the Court would require proof as respects to his legislative conduct thereafter.

If that be so, then we say (Voice overlap)

Justice Thurgood Marshall: Couldn’t’ it be that under Johnson, all that government had to prove was that he took a bribe for the expressed promise of doing something and that was the crime.

Regardless of what he did thereat.

Mr. Norman P. Ramsey: I do not, sir, read Johnson if, Mr. Justice, you are stating out as a whole in Johnson.

Justice Thurgood Marshall: No, I said that was left open in Johnson.

Mr. Norman P. Ramsey: No, I do not believe sir that is what was left open in Johnson.

What was left open in Johnson was, as this Court put in an opinion, “We live for another day.”

Justice Thurgood Marshall: But what is the crime he is being charged with?

Mr. Norman P. Ramsey: He is being charged with, under this indictment?

Justice Thurgood Marshall: Yes, sir.

Mr. Norman P. Ramsey: In this case sir, he is being charged with bribery and with aiding or abetting.

It is under 182 which is the aid or abet provision under 201 (c) or (g).

Justice Thurgood Marshall: Well, how about the bribery?

Mr. Norman P. Ramsey: 201 (c), sir.

Justice Thurgood Marshall: And what did the Government have to show us then that he took the money for the purpose of promises to do so?

What else has the government have to prove?

Mr. Norman P. Ramsey: The government alleges, in this indictment, that --

Justice Thurgood Marshall: What else that the Government have to prove?

Mr. Norman P. Ramsey: I would suggest, sir that the Government must necessarily prove that it was to influence him in the performance of an official act.

Justice Thurgood Marshall: It was for that purpose?

Mr. Norman P. Ramsey: That is correct and that is the allegation.

Justice Thurgood Marshall: And that’s all the Government has to prove?

Mr. Norman P. Ramsey: And that act would say --

Justice Thurgood Marshall: And the only speech that government has to show is that Senator Jones' speech was, "Give me $5,000.00 and I’ll vote the way you want me to vote."

That is not the time speech I think is covered.

Mr. Norman P. Ramsey: I am suggesting to you sir that what was done in this case was that the legislative conduct has alleged in his action, vote and decision, or what they intended to prove and that is the very area of inquiry which is foreclosed by speech or debate.

Now, I am not suggesting that the way that is foreclosed by speech or debate is the conversation having to do with whether or not a bribe would or would not be paid.

I am saying that government said, in this case, we intend to show the receipt of campaign contributions because the first in count, which the Solicitor General selected as typical, and which I will use as typical if the Court will keep in mind that count nine has a slight variant and it refers backward to the receipt of moneys there for as distinct or action taken there for to as distinct from anticipated action.

It is alleged in this indictment that the defendant sought, accepted, received and agreed to received the sum of $5,000.00 for himself and for an entity the DC Committee for Maryland Education.

A political fund in other words, it is what is alleged to be involved.

Then we go on to say and we intend to show that this was in return for being influenced in the performance of his official act.

In respect to his action, vote and decision and it was to that subject matter that Assistant United States Attorney addressed himself, when asked by the Court as to whether the act which were challenged were legislative in nature and he said, "Yes sir, they are," and that was in accord with the understanding of everybody concerned, that there were legislative acts.

And that being the case, it is perfectly clear that this was an attempt to precisely stage this case for that decision.

It was so decided and not all square in Johnson.

Chief Justice Warren E. Burger: But we’ll never know what the Government would rest its case on unless there is a trial, will we?

Mr. Norman P. Ramsey: Well, I suspect sir that very many times the great confident Trial judges aren’t perfectly willing and indeed need to rely on an open concession such as was made by the Assistant of United States Attorney in this case that it was legislative conduct which was challenged.

And that against the background of a fully known revelation to the trial judge of precisely what factual data that government intended to prove which they supplied as they say is pre-handed fashion to the defendant but did not put into the record because of the very good chance of pretrial, prejudicial publicity in a case for trial then pending shortly after the hearing date of the motions which were then before the Court.

And it was, as I suggest to the Court, a perfectly useful, desirable, and necessary proposition that courts proceed on this particularly areas whereas the Court said in Powell.

The Congressman should be relieved of the obligation to defend himself.

There is, under the decision of this Court, no constitutional basis for making a crime out of conduct where you must necessarily go to motivation for legislative conduct in order to prove that a given sum of money was received or had by a particular man in question by reason of a specific motivation on his part.

Chief Justice Warren E. Burger: Mr. Ramsey, you may continue.

Mr. Norman P. Ramsey: Thank you Mr. Chief Justice and may it please the Court.

In order to put our position in this case in proper context, I think I return to the basic principle from which we rely may be help.

First of all, we premise our argument on the announced concept as laid down by this Court, that one of the functions of Speech and Debate Clause is to relieve the senator of a duty of expanding itself.

That is announced in several of the recent expositions as respect to meaning of speech or debate.

We further would state to the Court that this imposes a duty on a trial of such cases or one before in such case comes to inquire into the case which is intended to be made by the prosecutor against the defendant on the particular facts of that case.

Now keep in mind, if you will please that our opposition is that if there is an interrogation which is violative of speech or debate, and an indictment has already been returned or has been at least one violation of speech or debate in the very inquiry which was the underlying, critical for the indictment which is returned.

Therefore, the rules of the District Judge before such a case comes, to look to the facts of the case, to look to the indictment, and to see whether what has been done, is a set of circumstances which leads to application of speech or debate and which are properly to cause him to enter into the case for the purpose of dismissing it because he has an obligation to honor the senator’s right, not to be called upon to defend, if the case is violative of speech or debate.

Justice William H. Rehnquist: Mr. Ramsey?

Mr. Norman P. Ramsey: Yes ,sir.

Justice William H. Rehnquist: Why could it not that be treated simply as a matter of privilege that is forbid the inquiry if one seeks to make the inquiry during the trial rather than throw out the whole case?

Mr. Norman P. Ramsey: As a practical matter, Mr. Justice Rehnquist, the way we see it and what we premise our argument on is a direct quote out of the Johnson case and in that case this Court said, "Speaking thereof conspiring to give a speech in return for a compensation from private sources."

However reprehensible, we believe that the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge. Speaking backward through the quality of that as it sufficiently indictable basis.

And I think the policy considerations sir, which is behind that is simply this, the clause is designed to prevent harassment of the legislator by either an unfriendly executive or by an unfriendly judiciary if that be the case.

But in the first instance, the Grand Jury investigation.

It is to shield him from being hailed in before the Grand Jury, queried as respects to his motives.

Now, if I may postulate a case which is illustrative, I think it would run this way, if the court does not vindicate speech or debate as stopping Grand Jury inquiry, is it not perfectly possible for an unfriendly prosecutor to hail in any member of the Congress, put before that Grand Jury a list of the contributors who contributed to his last campaign and within the frame or reference to the bribery statute, then put against that testimony that a given Senator and/or Congressman voted, in a particular way, favorable to the very interest who had contributed so heavily to his campaign funding at the time when he ran?

Now, from that, it would be postulated that you may draw the inference that the vote favorable to whatever interest it may be, could be said to be or an inference could be drawn that it was predicated upon the earlier contribution of money to his campaign.

It is this peculiar aspect of the elective process the need of the representative to get himself elected which sets apart the legislative from all the balance of government with the exception of, of course the president and vice president who are in a position where they necessarily are participants in political campaigns in order to become elected representatives of the people.

But basically, we think the policy is cleanly stated and we think the policy a wise one in that, the essence of the charge again is this Court said in Johnson, and speaking there to the Johnson charge, in this context, is that the congressman’s conduct was improperly motivated and as well appear that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.

Now, coming back to my original view of the matter, I would say, sir, that we approached it this way, the Court owes an obligation because of the prayer, the Court I am talking now the Court hearing such a case, owes was an obligation to examine the facts.

In this case, it was conceded by the government and found by the court that a necessary root of the case was inquiry into legislative conduct.

And it was at that stage that Judge Hart granted the motion.

Now, the price of the prosecution to this sort is, that it would seek to have a finder of fact, usually a jury but not necessary so, to draw inferences between the campaign funds on the one hand and positions taken politically.

Judgment calls by a man who makes policy, by a man who does indeed address himself to consideration which are based upon the well being of those whom he represents.

Chief Justice Warren E. Burger: Now, Mr. Ramsey, that language that you just alluded to or paraphrased from the Johnson opinion, wherein the context of a discussion of an alleged payment for making a speech on the floor of the House that has quite a bit to do with it, does it not?

Mr. Norman P. Ramsey: Well, I would say sir that while you are corrected, of course Mr. Chief Justice, that they were in a case which dealt with that subject matter.

Chief Justice Warren E. Burger: And in those particular remarks, I think were addressed to that general problem, were they not?

Mr. Norman P. Ramsey: I think, I purported [Voice overlap] Your Honor, I may have been paraphrasing, but however reprehensible and I had interspersed conspiring to give a speech in return for payment by private individuals.

Maybe we believe the Speech or Debate Clause extends at least so far, that was of course in the aspect of the case where they were discussing a speech which was given by Congressman Johnson.

And I believe that was the Court’s inquiry to me and the answer is yes sir that is correct.

Chief Justice Warren E. Burger: And this Court did not want to try to make the evaluation, the fact evaluation of whether the speech on floor of the house had influence the verdict as distinguished from other things that Congressman Johnson had done, isn’t that correct?

Mr. Norman P. Ramsey: Well, I think Mr. Chief Justice, this Court sent the case back and said that if he could be purged of elements offensive to speech or debate, there was no reason why that could not be a proceeding which would go to the other aspects of the case.

But the speech was so thoroughly intertwined into the governmental evidence in the original case.

It was impossible to sort it out at that point and simply went back in the trials.

Chief Justice Warren E. Burger: And he was trialed and convicted?

Mr. Norman P. Ramsey: On such substantive accounts which in no way involve the speech and which frankly spoke only to those aspects of the matter which had to do with his having interceded in connection with executive affairs as distinct from performing legislative function.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Ramsey.

Mr. Solicitor General, you have seven minutes left.

Rebuttal of Erwin Griswold

Mr. Erwin Griswold: Mr. Chief Justice and may it please the Court.

It seems to me that Mr. Ramsey unduly treats legislative act as synonymous with and absolutely the equivalent of speech or debate.

There is nothing in the constitution which relates and which refers in anyway to legislative acts and we submit that there are many acts which a legislator may do and may properly do as a legislator which are appropriate for a congressman or senator to do which are customarily done by congressman or senators which are not speech or debate and which are not within the protection of the Speech or Debate Clause.

If the Court should reach the conclusion that the Speech or Debate Clause protects a congressman or senator with respect to anything that he does after he takes the oath of office, our case would be difficult.

Although, as Mr. Justice Marshall has suggested, it is very hard to accept the conclusion that taking a bribe is a legislative act even within a very broad definition of that term.

As we see in this case, the case can be proved without bringing in to question any legislative act, any speech or debate, the only word in the indictment which gives me any pause at all is the word “vote.”

If the word vote were not there, if we now excise it, we make no use of it, I can find that nothing in the indictment which is in anyway in conflict with the Speech or Debate Clause.

It is suggested, turning to another matter, that the matter of punishing a Senator who takes the bribe is by the constitution committed solely to that House of Congress and that Congress has a legislative body, has no power to deal with that.

I should think that that was adequately disposed off by this Court’s decision in the Burton Case, some 60 years ago, where a congressman was convicted under a statute for taking fees in connection with appearances before the Executive Branch of the Government.

And more recently in Powell against McCormick where a similar argument has made, that the power of Congress of the House or the Senate to exclude was exclusive and that prevented the Court from giving a declaratory judgment on the matter.

Both of those cases seem to me to dispose of that contention.

And then finally, as has been suggested in the argument, it seems to me that the -- or our position is here, that the offense was committed when the bribe was solicited or taken with the requisite intent.

It is immaterial thereafter, whether any action including even any legislative action that short of speech or debate was done.

The argument is that rather similar to that which was rejected in the case in the Second Circuit involving Judge Matten, or a part of the defense was--it's a different statute, the case is not controlling but the analogy is close.

Part of the defense was that though we took the bribe, it didn’t influences decisions that all of the cases were decided right and a part of the charge which was sought to be submitted to the jury there was, that if the case where decided right, and then he could not be convicted.

That was--the argument that was rejected by Court of Appeals which Mr. Justice Sutherland sat and that the decision was that the taking in the bribe completed the offense and it was not necessary to show that the promised action was carried out.

Similarly here, the taking of the bribe, at least for the record was an intent, is the essence and the substance of the offense and as we see it, it is not necessary to prove certainly any speech or debate in order to maintain the prosecution accordingly.

We think the judgment below should be reversed.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Thank you, Mr. Ramsey.

The case is submitted.