[Subsequent to the hearing the subcommittee provided for the record three other lists of congressional cases which indicate who represented congress. All three lists were prepared by the Library of Congress and appear as exhibits 82, 83, and 84 in the appendix at pages 502 to 504, 504 to 515, and 515 to 519, respectively.] Senator ABOUREZK. Has your Department docket of congressional cases been growing or remaining relatively constant? Mr. LEE. I would like to submit a more accurate response to that for the record, but my guess is it is fairly constant. Senator ABOUREZK. Please do. [Subsequent to the hearings the Justice Department provided the following statement:] Because the Department does not categorize cases in its files according to the position of the defendant we cannot ascertain all the cases in which a Congressman is a defendant. It does not appear, however, that the number of cases against Congressmen that have been brought to the Department's attention has grown significantly. Senator ABOUREZK. The list which was provided by your Department, in Mr. Jaffe's letter, covering the years 1969 to 1973 shows that your Department agreed to represent Congress in 32 cases and declined to do so in 3 cases. Is this ratio, to your knowledge, of acceptance to a declination remaining constant? Mr. LEE. Yes. Senator ABOUREZK. I want to submit for the record a copy of the letter from Mr. Jaffe, to which was attached a list of cases I just referred to. This letter is dated March 14, 1973. I also want to submit a copy of the August 17, 1973 answer of Miss Mary Lawton of the Department to questions posed by the Joint Committee on Congressional Operations. Both of these letters comment on the authority for the Department's involvement in congressional cases and the criteria which the Department employs in determining whether or not to handle a congressional case. [The letters of March 14, 1973, and August 17, 1973, appear as exhibits 54 and 55 following:]1 Exhibit 54 Mr. RAYMOND L. GOOCH, U.S. DEPARTMENT OF JUSTICE, Staff Counsel, Joint Committee on Congressional Operations, DEAR MR. GOOCH: In accordance with your oral request made to the writer some weeks ago, I append hereto a list of cases which have been referred to the Department of Justice in which suit was instituted against a member of the Congress or one of its officers or against other legislative officials, with a brief description of the nature of the suit, whether or not representation of this Department was requested, and whether such representation was undertaken, The list is necessarily incomplete because the Department does not classify these cases to reflect whether the defendants or any of them are connected with the Legislative Branch. At the outset, it may be helpful to you and to members of the Joint Committee to be apprised of the Department's view with respect to its authority to represent members of the Congress, its officers, other legislative officials and their respective employees, and the broad guidelines the Department utilizes in determining whether representation may be accorded. 1 The text continues at p. 34 following. Section 118 of Title 2 of the United States Code provides that the United States Attorney, under the supervision of the Attorney General, shall represent an officer of either House of Congress in any suit brought against him for or on account of anything done by him in the discharge of his official duty, provided that such officer requests such representation. Officers of either House include the Speaker, President Pro Tem, Secretary, Clerk, Sergeant at Arms, Doorkeeper, etc. It does not, in our view, encompass members, as such, other than the Speaker and the President Pro Tem in connection with the performance of their duties as such. Although there is no obligation for the Department to represent members of either House, under 2 U.S.C. 118, it has been the policy of the Department to represent members of either House when requested to do so by such member, if the action against him arises out of or on account of anything done by him in the discharge of his official duty, that the interests of the United States are involved and that such interests do not conflict with the private interests of the Congressman, and there is no conflict between the representation of the Congressman or other legislative official and our representation of another defendant in the action who is an official in the Executive Branch. The authority of the Attorney General to accord representation to a member of either House under the foregoing circumstances, as a matter of discretion and policy, is derived from 28 U.S.C. 517 and 518. The exercise of this discretion by the Attorney General has been recognized by the courts in analogous situations. See Booth v. Fletcher, 101 F.2d 676, cert. den., 307 U.S. 628; People v. Graber, 394 Ill. 362, 68 N.E. 2d 750. It should be noted that in many instances members of Congress who are sued do not request representation by the Department, preferring to retain private counsel. With respect to your specific inquiry about suits involving alleged abuse of the franking privileges by individual Congressmen, a few have come to our attention, but no representation has been requested in any and we have given none. Those few which have come to our attention are included in the attached list. Sincerely, IRVING JAFFE, Enclosure. CASES IN WHICH THE DEPARTMENT OF JUSTICE REPRESENTED OR IS REPRESENTING MEMBERS OR OFFICERS of Congress OR OTHER LEGISLATIVE BRANCH OFFICIALS 1. McSurely, et al. v. McClellan, et al., Court of Appeals, District of Columbia, No. 516-69. Civil suit against the Chairman, members and various staff aides of the Senate Permanent Subcommittee on Investigations of the Government Operations Committee, for declaratory judgment that compliance with a subpoena issued by the Subcommittee was not required and for an injunction against the institution of criminal proceedings for contempt and for damages. The legislative defendants have requested and are receiving representation from the Department. The Committee has also retained private counsel, but the Department retains control of the defense of the suit. A motion by the defendants to dismiss the suit or for summary judgment is pending. 2. Freeman v. United States (S.D. Indiana), Civil Action No. 72C380. A suit against the United States, the House of Representatives, the Senate, and the late President Johnson, challenging the constitutionality of the Gun Control Act of 1968. Department moved to dismiss on behalf of all the defendants. The plaintiff, appearing pro se, has opposed the motion to dismiss and sought to amend his complaint and to drop all parties originally named, except the United States of America, and to add as a party defendant, the Secretary of the Treasury. The disposition of both motions is still pending. 3. Roberts v. Mumford (District Court. District of Columbia) Civil Action No. 2259-72. Suit against the Librarian of Congress for unlawful failure and refusal to promote the plaintiff, allegedly in violation of applicable statutes and regulations. An answer has been filed. 4. Washington Activity Group v. White (Court of Appeals, D.C. Circuit. No. 72-1445). Suit against the Architect of the Capitol, Chief of Capitol Police and Sergeants at Arms of the Senate and House for an injunction against inter ference by defendants with an Anti-Vietnam War Display of the plaintiffs in the crypt of the Capitol. District Court dismissed the complaint and the plaintiffs have appealed. Case not yet set for oral argument. 5. Bailey v. Eastland (District Court, District of Columbia), Civil Action No. 1805-72. Suit by an inmate of a state prison (Michigan) against Senator Eastland for a writ of mandamus to compel the Senate Judiciary Committee to investigate the State Judge and Prosecutor in connection with the criminal prosecution of the plaintiff. Suit dismissed by the district court on November 29, 1972. 6. Ringer v. Mumford (District Court, District of Columbia), Civil Action No. 2074-72. Suit against Librarian of Congress alleging race and sex discrimination in promotion policies and unlawful disregard of an administrative finding of discrimination. By opinion and order of February 28, 1973 District Court Judge Jones granted plaintiff's motion for summary judgment, declared the defendant's prior appointment of a candidate to the position of Director of Copyrights was void, and restrained the defendant from making any appointment to that position unless the regulations of the Library of Congress were properly followed and the discriminatory policies against the plaintiff were corrected. 7. Doe v. McMillan (District Court, District of Columbia), Civil Action No. 56-71; Court of Appeals, District of Columbia Circuit, No. 71-1027, Supreme Court No. 71-6356. Suit against the Chairman and members of the House District Committee, various of its staff members, the Superintendent of Documents and various officials or employees of the D. C. Government for declaratory judgment, injunction and damages in a class action to enjoin publication regarding school children in District of Columbia schools in violation of the constitutional, privacy and statutory rights of children. The district court dismissed the complaint and the Court of Appeals upheld the dismissal-one judge dissenting. The Supreme Court granted certiorari. The Department represented the federal defendants in the district court and the court of appeals levels; however, because of possible inconsistency between the positions which the Solicitor General had already taken in Gravel v. Laird, and positions which should be taken in the instant case, the Solicitor General suggested that the members of Congress and the individual federal defendants should retain private counsel. The legislative respondents have done so. 8. Eckert v. Senate and House of Representatives (E.D. Pennsylvania, Civil Action No. 70-3530). Suit charging that the Congress of the United States has acted or failed to act in such way as to deprive plaintiff of his constitutional rights as a citizen apparently because it has not exercised, among other things, its authority to raise revenue, levy and collect taxes in such manner as will discharge all the debts of the United States and provide its citizens with all the services to which they are entitled such as welfare, police, fire and health protection. Another suit against the Clerk of the District Court in the Eastern District of Pennsylvania sought to restrain the Clerk from charging or collecting any fee or exacting any bond for cost from any citizen who seeks to use the courts as a means of petitioning the Government for redress of grievances (E.D. Pa, Civil Action No. 71-200). The Department represented the defendants in both suits and both were dismissed on August 19, 1971. 9. Albaugh v. Agnew, et al. (D. Md., C.A. No. 19599). Suit against the Vice President, Clerk of the House of Representatives, the Secretary of State of Maryland and the Commissioner-Mayor of the District of Columbia; challenging the constitutionality of the law which removed the District of Columbia from the State of Maryland and to enjoin enforcement of the election results of May 14, 1968. The Department represented the Clerk of the House at his request and the Court dismissed the action as to all parties on September 10, 1968. 10. Putt v. Brooke (District Court, District of Columbia), Civil Action No. 2551-68. Suit against Senator Brooke by a federal prisoner who seeks money damages resulting from his alleged mistreatment in prison and his imprisonment for a longer period of time than authorized by law. The suit charged that Senator Brooke was apprised of these matters and failed to take any action to remedy them. The Department agreed to represent Senator Brooke but the case was dismissed under local court rules on May 6, 1969, because service of process on Senator Brooke was never effected. 11. Gray v. Powell, et al. (District Court, District of Columbia), Civil Action No. 172-69. Suit against various Congressmen, Senators, Attorney General, the head of the FBI, District of Columbia officers and many others for the alleged unlawful arrest of plaintiff, her mistreatment while confined and the denial to her of her constitutional rights. Dr. Milton Eisenhower, one of the defendants as Chairman of the National Commission on the Causes and Prevention of Crime, requested representation by the Department. The Department moved to dismiss as to all federal defendants and that motion was granted on March 12, 1969. 12. Shank v. Latta (District Court, District of Columbia), Civil Action No. 479-69. Suit by a federal prisoner against Congressman Latta for maliciously and slanderously advising plaintiff's daughter not to provide the plaintiff with enough money to engage an attorney, all of which resulted in his illegal imprisonment. The Department represented the Congressman at his request, but suit was dismissed on plaintiff's motion on May 7, 1969. 13. Univ. Senate of CUNY, et al. v. McClellan, et al. (District Court, District of Columbia), Civil Action No. 1628-69. Cole, et al. v. McClellan (District Court, District of Columbia), Civil Action No. 1629-69. Suits by various students at Columbia University and the Faculty Senate of the City University at New York and individual faculty members against the Chairman and members of the Senate Permanent Subcommittee on Investigations of the Committee on Government Operations, challenging the validity of a subpoena duces tecum served by that Subcommittee on various colleges and universities and to enjoin the use by the Subcommittee of any information obtained pursuant to those subpoenas. The subpoenas were issued in connection with the Subcommittee's investigation of campus disorders and riots. All legislative defendants were represented by the Department, which obtained dismissal of both suits in the District Court. Appeals to the Court of Appeals for the District of Columbia Circuit were consolidated and that Court affirmed the dismissals on November 6, 1970. 14. Simons, et al. v. Allen, et al. (District Court, District of Columbia), Civil Action No. 2788-70. Suit by the Washington Teachers' Union and its President against the D. C. Board of Education, Congressman Dowdy, and the Special Select Subcommittee of the House Committee on the District of Columbia for an injunction restraining the defendants from furnishing or demanding the names of teachers who attended Antioch College. All federal defendants were represented by the Department. The District Court temporarily restrained the D.C. Government defendants from furnishing any information, but refused to restrain the federal defendants from demanding any information. The TRO was vacated and the suit was dismissed on September 30, 1970, after the federal defendants withdrew their request for the names of teaching personnel who attended Antioch College. 15. Keener v. Congress of the United States (N. D. Florida), Civil Action No. 2419; Court of Appeals for the Fifth Circuit, No. 72-1725. Suit for a writ of mandamus to compel the Congress to discharge its constitutional duty and to rectify the wrong the Congress committed by destroying the "Value Clause Institution." Both the Clerk of the House and the President Pro Tem of the Senate requested Departmental representation which was accorded. The District Court Judge dismissed the action on January 31, 1972 and, on appeal to the Fifth Circuit, the dismissal was affirmed on August 23, 1972. 16. Weninger v. Congress of the United States (D. Kansas), Civil Action No. W-4767. The suit, presumably for declaratory judgment, which alleges that the Congress has improperly delegated its powers to the President, has violated Article XVI of the Constitution, all predicated on the exemption granted the Federal Reserve Banks from all taxation. Although no representation was requested by any source, the United States Attorney, without prior consultation, filed a motion to dismiss on March 20, 1972. Judge Brown, however, entered an order of dismissal sua sponte on March 23, 1972. 17. ACLU v. Jennings, et al. (District Court, District of Columbia), Civil Action No. 1967-72. Suit for declaratory and injunctive relief based on a constitutional challenge as to the validity of the Federal Election Campaign Act of 1971. Enforcement of this Act was sought to be enjoined because the Act allegedly violates the First, Fourth, Fifth and Ninth Amendments. The defendants named were the Clerk of the House, the Comptroller General, and an official of the General Accounting Office. All legislative defendants requested and were accorded representation. On October 26, 1972 a three-judge court granted a preliminary injunction. There is now pending, undecided, defendants' motion to dismiss. 18. Common Cause and John Gardner v. Jennings and Valeo (District Court, District of Columbia), Civil Action No. 2379-72. Suit against the Clerk of the House and the Secretary of the Senate for declaratory and injunctive relief. The complaint alleges that the earmarking of contributions to political action groups thus concealing the identity of the individuals is violative of the Federal Election Campaign Act of 1971 and an order is sought to compel the defendants to so rule. The Clerk of the House requested representation but reserved the right to appoint co-counsel pursuant to House Resolution 955 of May 3, 1972. The Secretary of the Senate declined Departmental representation and has retained private counsel. The Department has filed a motion to dismiss on behalf of the Clerk of the House. 19. Fellmeth v. Garmatz (District Court, District of Columbia), Civil Action No. 1636-72. Suit for injunction to compel the defendants, Congressman Garmatz, as Chairman of the House Committee on Merchant Marine and Fisheries, and the Committee's Chief Clerk and Clerk to make available for inspection all roll call votes taken in said Committee since January 3, 1971 pursuant to Section 104(b) of the Legislative Reorganization Act of 1970. The Department represented the legislative defendants but the case was dismissed by plaintiff on October 10, 1972 after the defendants made available all requested roll calls. 20. Lippincott v. Senators McGovern, Humphrey, Muskie and Congressman McCloskey (District Court, District of Columbia), Civil Action No. 1723-72. Suit to recoup the salaries and other compensation paid to the defendants Senators McGovern, Humphrey, Muskie and Congressman McCloskey while each was absent from Congress campaigning for the Presidency. Suit also seeks injunction restraining receipt by defendants of any further compensation while so campaigning. The Attorney General, as requested by plaintiff, declined to intervene under 31 U.S.C. 232(c). Each of the named defendants requested and was accorded Department representation. A motion to dismiss or alternatively for summary judgment was filed and that motion was granted by the district court on November 27, 1972. 21. Williams v. Albert, et al. (District Court, District of Columbia), Civil Action No. 27-73. Suit against the Speaker of the House, the Majority and Minority Leaders, the President, and the respective Chairman of the Republican and Democratic National Committees by plaintiff, who describes himself as the Regent, seeking damages and injunctive relief for alleged fraud and bribery in the conduct of "the Congressional Government" of the United States and to enjoin such continued practices unless the defendants obtain an ordinance signed by the plaintiff, as Regent; and obtain from plaintiff a trademark and license. Representation of the Department has been requested by the Speaker and has been accorded. A motion to dismiss will be filed. 22. Murphy v. Griffie (District Court, District of Columbia), Civil Action Ne. 1833-69. The nature of the action is obscure, but apparently relates to a writ of mandamus for the return of certain documents. The representation of Sena tor Griffin by the Department has been authorized but Senator Griffin has not yet been served with process in this case. 23. Pichler, et al. v. Jennings and Staats (S.D. New York), Civil Action No. 72-548. Plaintiffs are leaders of the Conservative Party in New York City and seek a declaratory judgment, declaring the Federal Election Campaign Act of 1971 unconstitutional, as violative of the First and Fifth Amendments, and request an injunction restraining the defendants from enforcing that Act. The defendants, the Clerk of the House and the Comptroller General, were, at their request, represented by the Department. The Department's motion to dismiss was granted on September 12, 1972. 24. Hillery v. Albert, et al. (E.D. Louisiana), Civil Action No. 72-1128. This suit against the Speaker, Congressman Colmer, the House of Representatives and its Clerk and Sergeant at Arms, seeks judgment declaring the Seniority Rule at the House of Representatives unconstitutional in that it denies voters equal representation. A mandatory injunction is sought against the House to compel its adherence to proper rules. All legislative defendants are being represented by the Department. A motion to dismiss or alternatively for summary judgment has been filed and is pending. |