EASTLAND v. U.S. SERVICEMEN'S FUND

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Argument of Herbert J. Miller, Jr.

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1923, Eastland against Servicemen's Fund.

Mr. Miller you may proceed whenever you're ready.

Mr. Herbert J. Miller, Jr.: Mr. Chief Justice, may it please the Court.

The petitioners before this Court are the Internal Security Committee of the Senate, his Chairman Senator Eastland and several Senators along with the General Counsel of the Subcommittee, Mr. Sourwine.

There are three additional cases involved in this petition.

These petitioners are the Internal Security Committee of the House of Representative, several individual Congressmen members of that committee, the General Counsel and the investigator of that committee.

I would like to call to the Court's attention that just recently the House of Representatives has voted to transfer the functions of the Internal Security Committee of the House of Representative to another committee.

However, I do not believe that it creates a question of mootness in the case here where the one reason if for no other as I read the complaints in those three cases as not only asking damages specifically against the general counsel and investigator of that committee but also requesting damages against the individual congressmen members.

In any event, the main case, the United States Servicemen's Fund versus Eastland does not have that problem.

The question, the basic question at issue here is at another chapter and one that this Court has faced on several occasions as to the power of a coordinate branch of our government.

Here at issue is a subpoena that was served by the Senate, internal security committee pursuant to a resolution upon a bank.

Justice Byron R. White: Who served it Mr. Miller?

Mr. Herbert J. Miller, Jr.: I don't --

Justice Byron R. White: Does that appear on the record?

Mr. Herbert J. Miller, Jr.: I don't believe the record shows who served the subpoena.

Justice Byron R. White: Well, he didn't mail it?

Mr. Herbert J. Miller, Jr.: I do not --

Justice Byron R. White: Because they didn't mail it and I don't suppose the chairman took it down there?

Mr. Herbert J. Miller, Jr.: I have assumed that the Chairman did not.

All I can go by is what is alleged in the complaint Mr. Justice White, which says as to the third subpoena, which is the only subpoena before this Court that the defendant, which could be Senator Eastland and the other Senators and defendant Sourwine, “caused the subpoena to be issued.”

I find that in paragraph 16 of the complaint.

Justice Potter Stewart: To say it must allege that it was served, isn't it?

Mr. Herbert J. Miller, Jr.: As I read the complaint sir, it does not and I --

Justice Potter Stewart: (Voice Overlap) to say that it was issued?

Mr. Herbert J. Miller, Jr.: I believe, I believe the record is silent on that point.

Justice Potter Stewart: And all the allegation is that it was issued?

Mr. Herbert J. Miller, Jr.: The defendant caused the subpoena “to be issued.”

Justice Byron R. White: Well, is that -- and that is what the injury is apparently just from the issuance, is that all?

Mr. Herbert J. Miller, Jr.: The complaint then goes on and alleges that the subpoena is void under the First, Fourth, Fifth, Sixth and Ninth Amendments and says that the -- and the Tenth amendment and that the sole purpose of the subpoena is to chill the First Amendment right of the United States Servicemen's Fund.

Now, the relief requested in the complaint is that the Chemical Bank to whom the subpoena was addressed and the Senators and the staff be enjoined from seeking to enforce the subpoena and also to have the subpoena declared null and void.

The records sought were -- according to the evidence adduced at the preliminary hearing before the District Court and the record is quite sparse on that apparently dealt with the normal bank records, cancelled or copies of cancelled check, bank statements, although the record is very, very weak on this point.

Also, there is no showing as to the number or amount of the record that were in fact in the hands and the custody of the bank.

It is however clear -- it is however clear and I think this is a very important part of this case that the plaintiffs below and respondents here were seeking records belonging to the bank, the recipient of the subpoena and were not seeking to enjoin the production of records which in fact belong to them.

The respondent here is a non-profit corporation.

It has a tax exempt certificate and has in fact filed with the Internal Revenue Service returns which specify certain contributors to this organization.

The activity of the United States Servicemen's Fund as shown by the evidence in the court below was to establish coffee houses adjacent to military bases and to have discussions with respect to many items controversial or not.

There was also a demonstration that the primary function of this committee was or the fund to discuss and the Vietnam war and to take whatever steps they could take by terms of persuasion, education and similar steps to demonstrate that the Vietnam war was one -- was -- should not be a part of the American effort.

Chief Justice Warren E. Burger: Mr. Miller, I --

Mr. Herbert J. Miller, Jr.: Yes Your Honor.

Chief Justice Warren E. Burger: I don't know whether it's of any importance or not but since the question arose and you have undertaken to answer it about the subpoena, I have thought and I find that my memory was correct that on page 13 of the appendix there is an allegation, paragraph nine at the bottom that the Senate Committee, subcommittee caused to be served on the Chemical Bank of New York, the subpoena duces tecum?

Mr. Herbert J. Miller, Jr.: If my memory serves me correctly Your Honor, that is the fist subpoena.

There are three subpoenas that were served in this case.

The first was withdrawn.

I believe that allegation refers to that subpoena, that subpoena was withdrawn.

Chief Justice Warren E. Burger: We're just concern with the one on 16.

Mr. Herbert J. Miller, Jr.: We are just concern with the third subpoena.

The second subpoena was served but the time to comply was so short that at the request of the Servicemen's fund, the committee withdrew the second subpoena and then the third subpoena issue.

And as I say, as I read the complaint, as I read the complaint, the only allegation is that defendants caused the subpoena to be issued and that sir is the third subpoena.

The Court of Appeals ruled that there was no immunity attaching to the conduct of the petitioners in this cause under the speech and debate clause.

I think that the decisions of this Court clearly demonstrate that there is in fact Senatorial immunity with respect to the authorization of this investigation.

With respect to the issuance of the subpoena and in fact I would go one step further even though the fact is not in the record and say with respect to the service of the subpoena.

This Court in Gravel and in Doe versus McMillan has given a careful and thoughtful consideration to the requirements of the coordinate branch of government, namely the Congress of the United States to participate in their legislative proceeding without fear -- without fear of either intimidation by the executive or being called before as the case would say a potentially hostile judiciary.

And they have gone further.

The cases have gone further and say -- and in addition to that, members of Congress should not be burdened with the difficulty of defending suits which are brought against them for acts performed in the legislatives sphere.

Thus, we already have the fact that voting, committee reports, authorizing committee investigations and receiving materials pursuant thereto, introducing material at committee hearing, referring the committee reports to the speaker.

Distributing and using reports for legislative purposes are all within the legislative sphere and immune from any kind of action under the speech and debate clause.

Furthermore, if we prescient from Doe versus McMillan and the Gravel case, and go back to the case of Dombrowski versus Eastland and examine what was held there in the Court of Appeals and in fact in the Supreme Court of the United States and we will find that the allegation in that case was that the defendants tortuously conspired to subpoena records in an illegal manner from a Louisiana and American activity committee who had records belonging to the plaintiffs in that case.

The Court of Appeals gladly held that the action pursuant to that subpoena insofar as the Senator and the General Counsel of the Committee were concerned were absolutely and totally immune.

The Court of Appeals affirmed -- I mean the Supreme Court affirmed that part of the decision which dealt with the Senator pointing out that there was no evidence in the record to connect him with any of the activities with the exception of the authorization of the subpoena and authorizing its service.

That case is a flat holding that the conduct here is not subject to review but is totally immune under the speech and debate clause.

The other factor which can be drawn from decisions of this Court, the Doe case and Gravel is that even unconstitutional conduct by members of the Congress and reading those cases, their aide, if within the legislative sphere are not subject to review by this Court or any other form, that is the holding of those cases.

Furthermore, presenting from the speech or debate clause and going to the basis of the coordinate branch of government theory namely separation of powers, the doctrine which was discussed in the Doe case along with the speech and debate clause and within the Gravel case points out that the judiciary where there is an immunity such as it exist under the facts of this case may not interfere with the action of Congress.

On this, I should emphasize as this Court did in McGrain versus Daugherty that the absolute necessity for an informed Congress is the ability to subpoena individuals and subpoena documents and that any inhibition on that power is in fact an inhibition on the ability to legislate wisely.

The Court of Appeals pointed out that the document subpoenaed in this case were bank records and that the evidence that was adduced before the District Court, District Court Judge Gasch demonstrated that the -- what the really real concern of the respondents here were in fact loss of contributions.

Thus we had testimony by professional fundraisers and by representatives of this organization, that there were anonymous contribution, there were contributions by cashier's check from brokerage accounts.

There were contributions from corporations that were “fronts” from individuals and in fact there was one example and I don't know whether it was hypothetical or not where the individual testified that the real anonymity was achieved where you had lunch with the donor and took cash at the lunch table.

These were the types of anonymous contributions which the respondents apparently felt would be disclosed should the bank records be made public.

Although I hasten to add the record does not show what the bank records in fact contained with respect to the names of contributors or not.

This brings us to a very interesting part of this case because here we have an attempt to equate the raising of funds, the contributing of money by a non-profit, tax exempt by a ruling organization and as distinguished from any showing that the membership of that organization is connected with or tied to contributions.

Now, the argument has been made and I must emphasize to the Court in the brief filed by respondents, they say that page 41, 42 or 43 that the speech or debate clause was not mentioned by the government who represented the respondents before the Court of Appeal.

And I think if you will look at the brief that was filed on behalf of these respondents in the Court of Appeals, there is a long and extensive section on the speech and debate clause citing Dombrowski, Doe v. McMillan and all of the other cases.

I would not want the Court to think that this issue was one just raised before this Court because it had been raised in the trial court and in fact before this Court.

But we are now in a position where what the respondents are arguing and have argued is that bank records which show potentially the source of contributors if they not be in cash is something which is covered by the First Amendment, freedom of association and I submit to the court that nowhere has this Court or to my knowledge any other court gone so far.

If in fact records of a bank which deal with moneys received by an organization, whether it be the United States Servicemen's Fund or perhaps the Republican or the Democratic Party.

Justice William H. Rehnquist: Mr. Miller, this is really a separate argument than from your speech and debate clause argument, isn't it?

Mr. Herbert J. Miller, Jr.: It is Your Honor.

Justice William H. Rehnquist: Because if you win on the speech and debate clause, it doesn't matter whether these records are protected or not, I presume?

Mr. Herbert J. Miller, Jr.: That's correct, that is correct.

And that's what --

Justice Potter Stewart: Is the separate argument from your separation of powers argument too, isn't it?

There's a third argument?

Mr. Herbert J. Miller, Jr.: Yeah.

Justice Potter Stewart: Thank you.

Justice Byron R. White: Oh, Mr. Miller, I am --

Mr. Herbert J. Miller, Jr.: Yes sir.

Justice Byron R. White: -- not so sure about that that if you went on your speech and debate clause issue, the case is over?

Mr. Herbert J. Miller, Jr.: I believe it is.

Justice Byron R. White: Well, I would have thought that if the, let's just assume that the rights of the organizations are violated by the amendment in the sense -- and then the -- and that in order to get off the hook, you have to plead legislative immunity.

Let's just assume that.

Now, if they send a -- if they send a man out to serve a subpoena or say to serve a search warrant or to make an arrest and the arrest or the search is unconstitutional, I would suppose the fellow they sent to do that could be held liable for damages.

That was Kilbourn against Thompson.

Mr. Herbert J. Miller, Jr.: Under Kilbourn versus Thompson, that is precisely the situation as applied here.

Justice Byron R. White: Well, I would suppose then that if the person who is serving the subpoena is committing an unlawful, unconstitutional act, he can only be held liable for damages but he can be enjoined, he can be enjoined?

Mr. Herbert J. Miller, Jr.: If in fact it is beyond the legislative sphere.

Justice Byron R. White: Well, it's a --

Mr. Herbert J. Miller, Jr.: He can be enjoined.

Justice Byron R. White: Well, its --

Mr. Herbert J. Miller, Jr.: My argument, if the Court please is that it is not.

Justice Byron R. White: I understand, I know, issuing the subpoena you say, stays within the legislative sphere?

Mr. Herbert J. Miller, Jr.: Yes sir.

Justice Byron R. White: But if the subpoena itself is -- if it invades some constitutional rights or some others, that somewhere along the line that at least where it actually impinges on somebody, Kilbourn against Thompson would indicate that the courts can intervene.

The legislators who ordered the unconstitutional act cannot be held in damage -- in liable for damages and they can't be enjoined from issuing another one but they -- but I would suppose the bank can be enjoined from complying?

Mr. Herbert J. Miller, Jr.: I would -- that is a part -- that is a part of the equation if the Court please where eventually you would end up.

Can a third party who controls the records in fact be enjoined but --

Justice Byron R. White: I think in the Gravel -- in Gravel and the other cases expressly said that a Senator or neither a Senator nor his aides can go out and break in to somebody's house to -- illegally in order to gather information for a hearing?

Mr. Herbert J. Miller, Jr.: I remember your language very well.

Justice Byron R. White: Yes, I thought you would.

Justice William H. Rehnquist: But you knew -- you never got to the third party question here did you because the banks were never served?

Mr. Herbert J. Miller, Jr.: The banks were in fact defendants in this suit, they just did not participate in the appeal.

Justice William H. Rehnquist: Well, did you get to the point according to the record where the banks were about to produce the records?

Mr. Herbert J. Miller, Jr.: In one of the House of Representative cases, one or more the bank did in fact produced some of the records.

Justice William H. Rehnquist: In the Senate?

Mr. Herbert J. Miller, Jr.: But those three cases, I want to emphasize to the court really are -- whether a part of this case they're in effect tag along because everyone has treated the Eastland case as the case that governs all of them.

Even though when you get down into the facts you realize there are some different factors with respect to the other three but the District Court and the Court of -- well, the District Court did not deal with the House of Representative cases, they went before other judges and were -- the subpoenas were enjoined because the Court of Appeals had -- have entered a temporary restraining order against the Eastland subpoena.

Justice Byron R. White: Mr. Miller, let me just ask, suppose the Senators and the Congressmen in the committee had never been parties to this suit?

The only party to this suit was the bank and the case, the complaint merely asks, well it asked before a declaratory judgment and an injunction against the bank.

Declaratory judgment that being forced to produce these records would violate the constitutional rights of the organizations and would you say that the bank certainly can't claim legislative immunity?

Mr. Herbert J. Miller, Jr.: Mr. Justice White, --

Justice Byron R. White: Can it?

Mr. Herbert J. Miller, Jr.: Mr. Justice, let me, of course it cannot claim legislative immunity but the case you put it would be fine and if that is -- if that is the way the court will treat the opinion below and leave within the legislative sphere, the Senators and the aides because they were in fact totally immune by their activities under the speech or debate clause then and only then do we address the question, does their stand can an individual whose records are with the bank, file some type of an action against the bank, a motion to quash the subpoena --

Justice Byron R. White: May I ask you --

Mr. Herbert J. Miller, Jr.: And that sir is a -- is not the case that we have before the court today.

Justice Byron R. White: That isn't off the -- it doesn't get off the hook just because the Senators might be immune?

Mr. Herbert J. Miller, Jr.: I would not argue that to the court because --

Justice Byron R. White: Oh, I thought you were a while ago?

Mr. Herbert J. Miller, Jr.: No sir, not at all.

What I'm arguing is that under the speech and debate clause, under the concept of separation and powers, the individual Senators and Congressman and their staff aides and counsel under the facts of this case are totally immune from the conduct alleged here under the speech and debate clause, that is I think a flat -- that is my flat position and is one that is supported by existing case law, recent and past.

Chief Justice Warren E. Burger: What is the impact right today, here and now of the judgment of the Court of Appeals on the Senators?

Mr. Herbert J. Miller, Jr.: They are -- the Court of Appeals reinstate -- they were -- the Senators were dismissed as defendant by the trial court.

The Court of Appeals reinstated them suggest -- and sent the case back for further proceeding suggesting that if some type of relief was necessary against the Senators that perhaps and they picked up a suggestion that a declaratory judgment had been requested, perhaps it would be appropriate to enter a declaratory judgment.

However, there was no requirement as I read it in the Court of Appeals decision that it'd be limited to a declaratory judgment.

Unknown Speaker: Well Mr. Miller, you said I gather that the -- the banks aren't here, they didn't appeal what?

Mr. Herbert J. Miller, Jr.: They did not appeal.

Unknown Speaker: From what?

What was entered against --

Mr. Herbert J. Miller, Jr.: They did -- they took no steps with respect to --

Unknown Speaker: What was the judgment against the bank?

Mr. Herbert J. Miller, Jr.: There was the -- there was no judgment against the bank.

The court denied the motion for injunction against the Senate Committee and the Senators.

They -- Senators appealed.

The Court of Appeals reversed and sent the case back.

The banks did not to my knowledge participate in the Court of Appeals.

Unknown Speaker: Well, so the -- if the -- on remand those are open, whatever remedy they should appeal with regards the banks?

Mr. Herbert J. Miller, Jr.: I do not know the answer to that.

I would -- I'd really don't understand quite where the banks fit in to this in the trial court.

Justice Byron R. White: Oh, are the one thing assured that that the Senators are kept in the case and not dismissed by the Court of Appeals.

Mr. Herbert J. Miller, Jr.: Absolutely.

Justice Byron R. White: And there's a judgment -- there is at least authorized the judgment to be entered against them?

Mr. Herbert J. Miller, Jr.: The Court of Appeal's decision authorized the judgment against the Senators and if I say so myself, it would be the only time to my knowledge that any such type --

Unknown Speaker: But if we should reverse that Mr. Miller, you'll still be in this lawsuit something that will involves the banks?

Mr. Herbert J. Miller, Jr.: The banks are as I understand it are still defendants and could be --

Unknown Speaker: So even if you win this lawsuit is not completely over?

Mr. Herbert J. Miller, Jr.: The -- I assume that they could still proceed with against the bank, just do it to -- the banks are defendants in the lawsuit --

Unknown Speaker: And if they do in that circumstance, your --

Mr. Herbert J. Miller, Jr.: Yeah.

Unknown Speaker: -- victory on the speech and debate clause will not assist the bank statutes.

Mr. Herbert J. Miller, Jr.: I would -- I would think not Your Honor, I would think not.

But let me address myself to the -- quickly to the First Amendment question here because I don't think presenting from the speech and debate clause, I don't think there is a First Amendment question here.

Because if bank records are covered by the First Amendment to the constitution, then this Court is going to face that issue when you get to the question of political contribution by your major political parties.

And I was -- submit if the court please that if you can bar the production of records, of contribution because of associational concepts under the First Amendment, then the reform legislation with respect to campaign contribution is going to be a matter that we're going to have to be separated or going to have to be ruled is not covered, thank you.

Chief Justice Warren E. Burger: Mr. Gutman.

Argument of Jeremiah S. Gutman

Mr. Jeremiah S. Gutman: Mr. Chief Justice, may it please the Court.

The subpoenas in each of these cases were in fact served and the record is very clear that they were in fact served.

The problem as to the banks is jurisdictional.

The whole series of these actions were begone.

The first one was -- is not now before the court, it was an action in the southern district of New York called Liberation News Service which held that New York was the improper venue for bringing an action to get a determination of the validity of such as subpoenas we have involved in this cases.

Therefore, the matter how to come down to the district.

In the prime case here, U.S. Servicemen's Fund, the fund is the New York City bank, Chemical Bank, New York Trust Company which is not present in the District of Columbia.

Because of the exigencies of time that is that the subpoena was served and was returnable so quickly are and the fact that part of the information was in fact delivered by a bank before the depositor had notice of the service of the subpoena, a quick action had to be brought and so an action was immediately brought in the district without even attempting to get jurisdiction in the District of Columbia over the New York bank, was brought on quickly before the trial Court.

A temporary stay was denied and an emergency stay was granted by the Court of Appeals, an issue was joined in that way.

Because the -- in one of the, in two rather, in two of the three house cases, the bank is a District of Columbia bank so there is jurisdiction over the -- over those banks in those cases but that's not so in the prime case, U.S. Servicemen's Fund.

Chemical Bank New York Trust Company is not before the court because it was never properly served.

Justice Byron R. White: So it was only in that case -- the only parties are the congressional?

Mr. Jeremiah S. Gutman: Congressional parties and staff.

Justice Byron R. White: Well that -- I mean, and it include the staff.

Mr. Jeremiah S. Gutman: Yes Your Honor.

Unknown Speaker: So if you lose out here, that's the end of this case?

Mr. Jeremiah S. Gutman: Yes Your Honor.

What the -- what Judge Tuttle for the circuit ordered in his remand to the District Court --

Unknown Speaker: Well, I -- I take it that if you lose on the immunity question, the case is over?

Mr. Jeremiah S. Gutman: We have to win your --

Unknown Speaker: What if -- it's over as against these -- the congressional party?

Mr. Jeremiah S. Gutman: If they are immune from declaratory or injunctive relief, we don't even ask for damages and Mr. Miller has misread our complaint, we didn't ask for damages, we never did.

If there is immunity of the -- either the staff or the Congress members or both as to execution of process with respect to declaration or injuction, we're dead, sure.

Unknown Speaker: Well that -- either reading the First Amendment.

Mr. Jeremiah S. Gutman: Well, right.

I have to reach the First Amendment question to say -- to show that process that I ought to get a declaration or an injunction, right.

But if I -- if these people are immune from judicial review of their actions --

Unknown Speaker: For what?

Mr. Jeremiah S. Gutman: Enforcing the subpoena.

The subpoena --

Unknown Speaker: You mean, you could -- do you think you could get an injunction against the Congress attempting internally to make a defense?

Mr. Jeremiah S. Gutman: No, no, I can't -- I don't believe that this Court could prevent the Congress, the congressional subcommittee or committee from voting to refer for contempt up the line from subcommittee to committee to house etcetera.

But I do think as in Stamler against Willis in Chicago, you could get an injunction against prosecution and that was done in that case by adding the prosecutor.

Now, what Judge Tuttle did here --

Unknown Speaker: Are you against the Senators?

Mr. Jeremiah S. Gutman: In that case the Senators were found not to be necessary parties.

Unknown Speaker: Oh, no?

Justice William H. Rehnquist: Is that from this Court?

Mr. Jeremiah S. Gutman: No.

Justice William H. Rehnquist: I ask you again, would you, are you insisting that you're entitled to a judgement like that against the Senators?

Mr. Jeremiah S. Gutman: At this point, no Your Honor.

At this point, no.

What I think happened here is when Judge Tuttle ordered a remand, what he said was, I'm going to put this congressional people back so that there can be a hearing in the district to fashion whatever relief maybe appropriate depending upon what can be developed as to the procedures and responsibilities of the various staff members of the committee.

And he said, the District Court should be generous in adding whatever parties maybe necessary in order to give relief.

And those are staff people.

And I think complete relief could be granted once we know the facts.

If the court please, with the permission of the court, our arrangement had been that Miss Stearns was going to deal with speech or debate and I was going to deal with First Amendment and the other issues that I see -- in response to Your Honors questions will be getting into her territory.

So, if may, I would like to reserve for her responses in this area.

And, but of course, the First Amendment issue is basic to the whole thing.

If you buy Mr. Miler's argument that bank records of a membership organization are not protected by the Alabama and Louisiana and Florida and so on cases and particularly the Arkansas case, Pollard against Roberts, well then we are finished, we'll never reached speech or debate.

And it seems to us that in contemporary society where it is impossible to function without using the facilities of a bank to clear your funds, whether they are cash funds taken with a luncheon table as Mr. Miller suggest or the cashier's checks, brokerage checks, the direct checks from individuals who are identifiable.

The fact to the matter is that these checks are microfilmed and its these very microfilms which were requested in the very broad subpoena which was served in these cases.

Those bank records in effect are the membership list and in Pollard against Roberts which this Court affirmed, the three-judge court, I'm basing on what Mr. Justice Blackmun said, it was exactly the case, it was a Republican party of Arkansas.

And an attempt was made to subpoena the bank records and at the suit of an officer of the Republican party intervening as the real party at interest just as U.S. Servicemen's Fund here comes in as the real party in interest.

The Court held that indeed the bank records are precisely the equivalent in the NAACP list in the Alabama and Florida cases.

And that they should -- the production thereof was enjoined and I see no distinction here.

And if this kind of thing, this kind of protection is not afforded to bank records, given modern society and the manner in which practically all membership organizations worked, you going to be able to destroy membership organization anonymity and privacy.

Almost every membership organization must maintain not only a bank account in which the depositor's checks are -- and routinely microfilm so that the name and address of the drawer of each item is available.

But they also maintain their membership list upon computerized banks for purposes of sending out their proportional mailing and their dues, notices and whatever else they do.

These things are the functional equivalent of the membership list which before modern mechanics of office management were maintained in a secretary's file drawer in the office of the organization itself.

Justice William H. Rehnquist: Of course there are more than that too aren't they Mr. Gutman, they have got financial information in addition to ways of identifying members?

Mr. Jeremiah S. Gutman: Of course they have.

The problem here is, if the subpoena had been served upon the organization itself and warned as were broad ranging as it is then we got a good Fourth Amendment argument against the subpoena too of course.

The organization would be able to respond and to say these much, we think you're entitled too and these much we think you're not.

If as is alleged in the arguments in the lower courts here and as stressed in the Judge MacKinnon's dissent below, what they're really after is to find out whether there are subversive contributors or foreign governmental contributors to this plaintiff or the respondent here then the question could be addressed in just that way.

Justice William H. Rehnquist: But one thing that struck me about the Court of Appeals' opinion was the absence from it of any of the balancing type of reasoning that you get on the Barenblatt case and other types of that, where you're saying basically what is Congress is trying to do, what are the First Amendment interest quite apart from the speech and debate clause, it seemed to me the Court of Appeals just concluded your clients did have a First Amendment interest therefore that -- it was all over?

Mr. Jeremiah S. Gutman: Yes because the burden is on the government.

There was a trial here, there were two trials, it was a trial on the preliminary injunction and that was remanded with the stay by the Court of Appeals, when that was denied and this Court of Appeals reversed it and sent it back, it was a stay and said hold the hearing on the ultimate --

Justice William H. Rehnquist: You lost both the trials, didn't you?

Mr. Jeremiah S. Gutman: Right, we lost both trials, however, we did make a record in which we put in affirmative, uncontradicted proof as to the First Amendment delicacy and necessity of protecting these records.

At the end of our case, Judge Gasch said to the government attorneys, “do you have any evidence, do you have any witnesses” and they said no and they rest it.

Justice Thurgood Marshall: Mr. Gutman, are these --

Mr. Jeremiah S. Gutman: Yes Your Honor.

Justice Thurgood Marshall: -- any of these organizations, membership corporations under the New York state law?

Mr. Jeremiah S. Gutman: No sir.

The USSF, the prime respondent here is a Delaware membership corporation.

The others I believe are incorporated associations in New York.

Justice Thurgood Marshall: On the same cause you can get it if your membership card is under New York, all you have to do is be a member and you can get the whole membership list?

Mr. Jeremiah S. Gutman: That's quite different Your Honor from a member who is after all entitled under the First Amendment I would guess to know with whom he's associating, that's one thing, it's another thing for the Congress of the United States to get that list.

Justice Thurgood Marshall: Haven't you said, joined it?

Mr. Jeremiah S. Gutman: Sir?

Justice Thurgood Marshall: Could a member of the staff join the organization and then get the membership list?

Mr. Jeremiah S. Gutman: Could he infiltrate it?

Justice Thurgood Marshall: Join.

Is it open to the public or not?

Mr. Jeremiah S. Gutman: Surely.

Unknown Speaker: Mr. Gutman, I'm confused about -- we have four cases here, don't we?

Mr. Jeremiah S. Gutman: Yes.

Unknown Speaker: Now, in any of them has a bank conserved, didn't you mention that the District of Columbia have any?

Mr. Jeremiah S. Gutman: Yes.

In the two -- in two of the three House Committee cases, a bank has been served in the District of Columbia.

Unknown Speaker: And now, we have to reach the First Amendment issue at least in that case or in those two cases?

Mr. Jeremiah S. Gutman: I guess you have to reach the First Amendment issue because if we have to prevail on the First Amendment for you to issue an injunction --

Justice Byron R. White: Oh, I know --

Mr. Jeremiah S. Gutman: -- even against the bank.

Justice Byron R. White: It wouldn't make any difference even if you did prevail on the First Amendment ground if the Senators are immune as respect to the Senators?

Mr. Jeremiah S. Gutman: Correct.

Justice Byron R. White: But if immunity will not dispose of the --

Unknown Speaker: The bank.

Justice Byron R. White: -- issue against the bank then the First Amendment issue is still on the case of --

Mr. Jeremiah S. Gutman: Exactly.

Unknown Speaker: The cases are stay, are they?

Mr. Jeremiah S. Gutman: That's correct though we have --

Unknown Speaker: Yeah, which one is that?

Mr. Jeremiah S. Gutman: I think P --

Unknown Speaker: Though I don't waste the time to --

Mr. Jeremiah S. Gutman: I think its PCPJNPAC, People's Committee of Peace and Justice and National --

Unknown Speaker: That's People's Coalition for Peace and Justice?

Mr. Jeremiah S. Gutman: Yes, People's Commission and National Peace Action.

Unknown Speaker: Do you agree -- you may not agree at all that the cases, the House cases are not moot?

Mr. Jeremiah S. Gutman: I suspect they are and we argued that before for two reasons.

The House is not a continuing body.

The -- these subpoenas opinions were issued in 1970, there had been two congresses since then.

Unknown Speaker: And now the -- now this committee has disbanded or --

Mr. Jeremiah S. Gutman: Now the committee doesn't exist at all.

So it seems to me that indeed the House cases are moot though this Court has on many occasions.

Unknown Speaker: Well, are you asking -- would you suggest they didn't --

Mr. Jeremiah S. Gutman: No I think not Your Honor because the issue is the kind of issue that --

Unknown Speaker: Well, if they're moot?

Mr. Jeremiah S. Gutman: Well --

Unknown Speaker: If they are moot, it's not for you tell us what (Voice Overlap) --

Mr. Jeremiah S. Gutman: I understand that but I can suggest that in those cases where the issue is likely to be repeated and it is of serious dimension and it's the kind of thing that tends to escape review --

Unknown Speaker: Not in the House case?

Mr. Jeremiah S. Gutman: Well, that that committee isn't going to issue any subpoenas anymore, we know that.

Unknown Speaker: Its power or whatever left of those powers, if there's anything, they're now what, were they committee on judiciary?

Mr. Jeremiah S. Gutman: Judiciary I believe yes, but that's not clear because the House isn't really organized yet.

Unknown Speaker: To think about it, a subpoena from the committee on judiciary?

Mr. Jeremiah S. Gutman: Well, they'd have to issue a new subpoena I suppose under a new resolution and I guess we'll be back up here, that's why I think it would not be inappropriate to proceed.

All the parties have approached the matter as though the House cases are identical with the Senate cases and I think they are except for the fact that the House is not a continuing body.

Unknown Speaker: Yes and it is.

Mr. Jeremiah S. Gutman: And the Senate of course is a continuing body so we don't have that issue there.

For all purposes below and as a matter of fact, we all agreed that it wasn't even worth printing the complaints in the House cases, they're not even in our joint appendix because everybody agreed that whatever happened in the Senate case would be binding on the House issues.

So even if --

Unknown Speaker: Well, if you -- should we just -- be just forget the House case?

Mr. Jeremiah S. Gutman: I think that they're tag along cases, no Your Honor.

Unknown Speaker: Oh, I know but let's assume that the only case in which you would've -- let's assume you lose on the immunity case, let's just assume that.

And then the Senate case is over.

Mr. Jeremiah S. Gutman: If indeed there's no way to give us relief in the Senate case then the Senate case is over, I cant see --

Unknown Speaker: I -- now, what about the House cases?

Mr. Jeremiah S. Gutman: That's why I've said that they should not be treated as moot because --

Unknown Speaker: If they are moot, you say but don't treat them if you lose --

Mr. Jeremiah S. Gutman: Under the -- no, I think they shouldn't be treated as moot in any event Your Honor because of the recurrence of the problem, that is not -- what there is make -- whether the committee -- the subpoena issued next week is -- bears the imprimatur over the House Internal Security Committee or its old name, the Un-American Activities Committee or some new name which I give it next week.

The issue will really be the same if they try to get the same kind of issues.

Chief Justice Warren E. Burger: You want us to decide for all time whether bodies of the House of Senate may issue subpoenas against bank records for bank records?

Mr. Jeremiah S. Gutman: No, I think that you don't want that.

The issue portended isn't that broad Mr. Chief Justice.

Chief Justice Warren E. Burger: It sounded like (Voice Overlap) --

Mr. Jeremiah S. Gutman: Oh, what I'm saying is that a subpoena like this of a membership corporation against their membership group addressed to securing from its bank every bit of paper and every record that that bank has concerning that organization that should be declared to be a void subpoena.

Now, that doesn't mean that such a subpoena against bank records can't be narrowly drawn and in a proper case appropriately served.

If they wanted to know put for instance are there any foreign government contributors to your organization, they might have asked for that kind of record.

What I'm saying is that the organization itself has the standing to make the assertion and seek the relief even though it is not the record title owner so to speak of the documents at issue and I believe they have signaled for Ms. Stearns.

Chief Justice Warren E. Burger: Ms. Stearns.

Argument of Nancy Stearns

Ms Nancy Stearns: Mr. Chief Justice, may it please the Court.

This case is actually part of a long line of cases which begins with Marbury versus Madison, moves on to Powell versus McCormack and only this past summer includes United States versus Nixon.

In the most recent of those cases, the Chief Justice speaking for the court reaffirmed that it's emphatically the province and the duty of the judicial department to say what the law is.

Here, we have the same kind of problem.

We have a subcommittee of the Senate of the United States seeking to evade judicial scrutiny for its acts just as the Congress of the -- the House of Representatives in the United States had in Powell and the President of the United States had in United States versus Nixon.

At issue here is a double attempt to evade judicial scrutiny.

Chief Justice Warren E. Burger: Well, whether to pursue that analogy, if it's in -- offered as an analogy, the case you referred to seemed -- seems to me to have held that when the judicial branch needs records to perform its function, the judicial branch will get them no matter where they are?

Now, if the legislative branch needs certain records to perform its function, certainly an argument could be made that the legislative branch shall get them wherever they are?

Ms Nancy Stearns: I would suggest there are at least two distinctions, one of course is the fact that the records here are First Amendment material.

Another however is the subpoena has to be scrutinized.

Is it in fact a constitutional subpoena.

Are its limits appropriate constitutional limits?

Our problem here is the subpoena that was issued has no group, no judicial authority scrutinizing whether or not, in fact that subpoena is constitutional.

Certain --

Chief Justice Warren E. Burger: Was there a power in the District Court or the Court of Appeals to narrow the scope of the subpoena so as in its view to avoid disclosing membership as such?

Ms Nancy Stearns: In this particular case?

Well, we of course argued that there would have been that power but there were two problems.

Number one, the subpoena was not initially served on the real party it interest, the party whose rights were at stake and that was one of the forms of an attempt to evade judicial scrutiny rather the subpoena was served on the bank.

A stake holder who could not be expected to brave the whole question of contempt and raise the constitutional rights of its depositors, that was the first problem.

The second problem of course is amongst the various defenses the committee is raising is the question of the speech and debate clause.

If they were correct, then the court couldn't narrow because the court couldn't look at the subpoena.

We of course argue that the speech or debate clause does not in any way prevent a federal court from looking at a congressional committee, scrutinizing it and considering and determining whether or not its constitutional but both of those attempts were made by the subcommittee to evade judicial scrutiny.

The two reasons that we feel that the speech or debate clause is not appropriate and in fact cannot prohibit the kind of judicial scrutiny that we request and feel is appropriate, first is because the speech and debate clause is inapplicable to actions for declaratory injunctive relief.

Secondly, because the very subject matter at issue are congressional committee subpoena is not the kind of subject matter that is barred from judicial review by that clause.

Justice William H. Rehnquist: What's your authority for the fact that the speech and debate clause doesn't apply to actions for declaratory relief?

Ms Nancy Stearns: Well, let me start by suggesting that there has never been a case that I have seen that has in fact held that and if we look to the most recent opinions of this Court, we see very, very sharp distinction made.

In the opinion of this Court written by Mr. Justice White in the Gravel case, one looks very closely and sees that although damages are prohibited against a House of Representative member or a Senator that the actual actions are not necessarily barred from scrutiny.

Therefore for example, although the writ issued -- excuse me, the authorizing resolution in Kilbourn versus Thompson could not lead to a damage action against the House of Representative's members that voted for it.

The writ itself could in fact be scrutinized.

I think that's a distinction that was drawn quite carefully in the Gravel case.

Justice Byron R. White: Yeah, but in the speech or debate clause cases it seems to me one of the purposes of the clause has been said to be that Senators and Congressmen should not be called into court to even answer the claims within the scope of -- within the scope of the clause?

Ms Nancy Stearns: I think that --

Justice Byron R. White: And that's part of the -- that's just to keep them from being bothered so much?

Ms Nancy Stearns: There are several things that had been said.

One is that they shouldn't be in a position of fearing the burdens of litigation or fearing the possibilities of liability either civil or criminal.

Here we would suggest there is no such fear.

If you talk because of course there is no personal liability.

If you --

Justice Byron R. White: Yeah, (Inaudible) --if you are right, you have to answer the -- you have to hire a lawyer, you have to hire Mr. Miller or somebody and pay him a lot of money and take your time and energies away from your job?

Ms Nancy Stearns: The reality Your Honor is that in this kind of a declaratory and injunctive action, in fact normally the government represents the committee as it did in the two courts below just as the government is involved in defending the constitutionality of that committee's subpoena if there's a criminal contempt case that arises out of it, its no different.

Chief Justice Warren E. Burger: Isn't there another factor here.

You speak of having a First Amendment rights chilled, isn't there perhaps a corollary that if Senators and Congressmen who caused subpoenas to be issued find that District Courts are entering injunctions against them would the threatening over them over the contempt power to be asserted against the Senator or a Congressman that that may chill Senators and Congressmen from the performance of their legislative function?

Ms Nancy Stearns: Your Honor, I would some how doubt that they would even consider violating an order of a court so that the problem of contempt is not a realistic one at least I would certainly hope not but the one thing I'd like to suggest is that if this is a very, very narrow case.

Chief Justice Warren E. Burger: Do you think that --

Ms Nancy Stearns: We --

Chief Justice Warren E. Burger: -- answers the problem that --

Ms Nancy Stearns: Why, I think its part of the answer.

Another part of the answer however is that in reality we're not talking about every congressional committee subpoena, First Amendment or otherwise.

What we're talking about is a very, very narrow range of cases.

Those range -- those cases with the party who's constitutional issues are at stake cannot himself raise them because the subpoena has been served on the third party.

In all other instances and this of course will bring me to my next argument, in all of the other instances, the constitutional questions that underlie the action are able to scrutinized.

They are able to be scrutinized in a criminal contempt situation.

Here however we have this one narrow range.

Justice William H. Rehnquist: But that's because Congress -- that's because Congress then seeks the aid of the courts in order to enforce its subpoena.

Here, you haven't waited till that stage.

You're asking the judiciary to intervene before the congressional process has even begun?

Ms Nancy Stearns: We haven't -- of course we haven't waited Your Honor because we in fact can't wait.

If we had been the parties who's receiving the subpoena, we would in fact have appeared.

We would have in fact raised our constitutional rights.

We may or may not have been held in contempt.

Here however, we did not receive the subpoena and I think that that's probably brings us to the most basic issue in this case for we would argue that this is not really not a speech and debate clause case.

For in fact the constitutionality of subpoenas is scrutinized by the courts all the time in these criminal contempt situations.

This really is a question of separation of powers and when as the Court of Appeals below and other Courts of Appeals in parallel kinds of cases said, "How to avoid unnecessarily infringing on the rights of a coordinate branch of government."

Justice William H. Rehnquist: But no one would contend that the actions of the Justice Department and the executive branch in prosecuting a defendant who's been cited by the Congress for contempt is a part of the congressional function and that's why -- that never arises in those cases.

They're always allowed to challenge the constitutionality.

Ms Nancy Stearns: What we --

Justice William H. Rehnquist: You're in quite a different situation here?

Ms Nancy Stearns: What we would suggest Your Honor is that the situation isn't quite that different at all and that in fact implicit in the subpoena is the obvious possibility that what will follow is the executive branch and the judicial branch becoming involved and using the full weight of the government against the party upon whom the subpoena has been served.

But here is the one example where you can't expect the subpoenaed party to raise all this constitutional rights.

Because the subpoenaed party is an uninterested, disinterested third party here, a bank.

And therefore, in this one very, very narrow range of cases, you must in fact weighing all this matters and particularly weighing the fact that there's a First Amendment right involved permit that party whose constitutional rights are at stake to come in and have the constitutionality of the subpoena scrutinized.

We are not and I repeat asking for any damages against the committee members.

We are not asking for any prosecution of the committee members.

In fact, as Judge Tuttle pointed out below, even an injunction is not necessary, similarly in Powell versus McCormick, this Court concluded that an injunction was not necessary because certainly a coordinate branch of the government would obey, would honor the ruling of this Court.

So, all we're really asking for here is the court to look at this subpoena, its no different, we would suggest than the writ under which Mr. Kilbourn was arrested, it is effectively, exactly the same thing to look at that writ, to look at that subpoena and determine whether or not its constitutional.

And if it is not constitutional, why then declare unconstitutional and a declaratory judgment and we would certainly expect and how --

Justice Thurgood Marshall: Would your argument be the same if there were no staff members involved, its just the Congress committee chairman issued the subpoena or himself --

Ms Nancy Stearns: Well --

Justice Thurgood Marshall: You wouldn't think he was protected?

Ms Nancy Stearns: Frankly prior to Gravel, I would have assumed that there was some sort of difference between staff members --

Justice Thurgood Marshall: Well, since (Voice Overlap) --

Ms Nancy Stearns: But now I would think not.

I would think the Senator is in exactly the same position and the reason I think so --

Justice Thurgood Marshall: You mean when -- you mean it could be --

Ms Nancy Stearns: As the staff member would be.

He --

Justice Thurgood Marshall: You mean he could be questioned?

Ms Nancy Stearns: There is a distinction between questioning him personally, questioning his motivations and issuing a declaratory judgment saying that the subpoena he issued and had authorized and had enforced, had served is unconstitutional.

That the ruling of that -- this Court in that instance would not be questioning his motivations.

Justice Thurgood Marshall: In what basis would it be unconstitutional?

Ms Nancy Stearns: In this instance on the basis of the First Amendment, perhaps the Fourth and other amendments but certainly as Judge Tuttle held under the First Amendment.

I think that the important question and hear words are very, very sensitive.

I think that there is a great difference between saying that we're questioning a Senator and saying that his action, the subpoena he issued is unconstitutional between asking for liability either civil or criminal against a Senator or asking that the subpoena he issued just like the writ in Kilbourn versus Thompson is unconstitutional.

Because there's a big distinction between actual speech and debate and even committee reports as in Doe versus McMillan and the process, the legal process that goes out beyond the halls of the Senate or beyond the halls of the House is no longer an intramural activity carried --

Justice Thurgood Marshall: But this goes to the bank, its all -- as it goes out of the hall, it doesn't go out there, they send a subpoena to the bank and the bank sends them the record?

Ms Nancy Stearns: Well, that's exactly it, it goes beyond the Congress.

It goes into the world at large where it will --

Justice Thurgood Marshall: I suppose -- they suppose -- does the subpoena tell them to bring them?

Ms Nancy Stearns: That's the same thing.

You mean if they just call him on the telephone and say we've got the subpoena would you please come down or --

Justice Thurgood Marshall: Well, you may --

Ms Nancy Stearns: Then its exactly the same kind of thing.

Its bar, its --

Justice Thurgood Marshall: You get an injunction against them in bringing them in?

Ms Nancy Stearns: It would be exactly the same thing.

Presumably what we're getting an injunction -- well, we weren't --

Justice Thurgood Marshall: (Voice Overlap)

Ms Nancy Stearns: -- able to get an injunction against the bank.

Pardon me?

Justice Thurgood Marshall: The injunction says to the bank, bring us -- bring your records in?

Ms Nancy Stearns: We would again ask -- well, if we could serve the bank properly in our situation we couldn't have unless we waited at the door for Chemical Bank to come down and appear.

Chemical Bank was kind enough to notify us so that we could in fact go into court prior to that time but we could not serve Chemical Bank in New York to make them a party in the first place.

Chief Justice Warren E. Burger: You suggested something that indicated a limitation that certain acts had to occur in the Halls of Congress.

If a committee, subcommittee holds a meeting in San Francisco or anywhere else in the United States, is that any less protected --

Ms Nancy Stearns: Oh, certainly not, that's certainly just the same, I mean when I said the Halls of Congress, I mean when Congress or a congressional committee is in session, however, that does bring up the distinction that was made in the Doe versus McMillan case.

For example, if a House member or a Senate member is to read a libelous report on the floor of the House, he is clearly immune.

If he takes that same report and goes to his home territory and reads it again, he is no longer immune.

So there is a distinction of internal and external.

Chief Justice Warren E. Burger: Is that because of the four walls and the ceiling or is that because he is not performing a legislative function?

Ms Nancy Stearns: I think that it's both.

It's a concept of what is an internal function and when it loses its internal nature.

Chief Justice Warren E. Burger: You read that case closely you will see that it relates to the fact that the Congressmen that might be using that as part of a campaign for reelection and that that's the distinction?

Ms Nancy Stearns: That I think is one distinction Your Honor but I think there was also another distinction when the court said that in fact the question of republication could be looked into.

And whether or not the republication in fact went beyond what would normally considered an internal function.

We would therefore request that this Court affirm the opinion of Judge Tuttle below both as to the speech or debate clause in the First Amendment issue.

Thank you.

Chief Justice Warren E. Burger: Mr. Miller, do you -- you have a few minutes left.

Rebuttal of Herbert J. Miller, Jr.

Mr. Herbert J. Miller, Jr.: Very briefly if the Court please.

In the joint appendix in the Court of Appeals case, I found the complaints with the three House of Representative cases and I think if the court will examine those, they will find the damages were in fact requested $500,000.00 against the defendant's pot and the Sanders as well as the bank and additional, in paragraph 28th -- sir?

Justice Thurgood Marshall: (Inaudible)

Mr. Herbert J. Miller, Jr.: Yes sir, one -- yes, the House of Representative cases.

Unknown Speaker: I don't think you'd be that the very satisfied if these cases were moot?

Justice Thurgood Marshall: Well, if the court please, depending on what transpires with respect to the committee, I feel that the court should be aware of the status with respect to what Congress has done and be the fact that damages, I just want to clear the record of, the damages and that's a general request for damages in paragraph of 28 (a) of two of the complaints.

Unknown Speaker: But not in the Senate case?

Justice Thurgood Marshall: Not in the Senate case, no sir.

Unknown Speaker: Well, is there -- is that in the one with the District of Columbia bank in it?

Mr. Herbert J. Miller, Jr.: Yes sir.

The other thing I would like to call the court with respect -- attention with respect to declaratory judgments is that this Court has said that the speech and debate clause protects Congressmen not only from the consequences of litigation results but also from the burden of defending suits, indeed the clause would “be of little value of legislators could be subjected to the cost and inconvenience and distractions of a trial upon the conclusions of the plea.”

I submit --

Chief Justice Warren E. Burger: In one of these cases, was there not at least a strong intimation that a member of a Congress served with a claim directed against an utterance right within the four walls of the Congress to make it clear, could totally ignore the process and if the judge -- any judgment was entered against him would be analogy, isn't there some implication of that kind?

Mr. Herbert J. Miller, Jr.: I don't recall that sir.

I think it is clear that it would in fact would be a totally -- not only because it would bring into total conflict.

The judicial branch which had entered the judgment --

Chief Justice Warren E. Burger: But that was just a literal language of the speech or debate clause that shall not be called to answer would be brought enough to mean he didn't have to answer a complaint in a District Court proceeding?

Mr. Herbert J. Miller, Jr.: I would interpret it that way, on the other hand there had been decisions which suggest that at minimum and or at maximum the Senator or the Congressman is required to at least file a motion to dismiss.

A suggestion is not -- not been a holding.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen, thank you Ms. Stearns.

The case is submitted.