CONSTITUTIONAL AUTHORITY TO DEFINE LEGISLATIVE ACTS 1. Is it necessary to equate "legislative acts" with the "Speech or Debate" language in Article I, section 6, to broaden the scope of legislative immunity by legislation? 2. To what language in the Constitution is the grant of legislative powers in Article I, section 1, and the necessary and proper clause of section 8 tied to afford Congress the authority to legislatively define its own immunity? CONGRESSIONAL RESPONSIBILITY UNDER ARTICLE I, SECTION 5 1. Any congressional action to define a realistic scope for legislative activities, for which legislators and those acting on their behalf are to be immune from judicial proceedings, carries with it the responsibility to keep our own houses in order. Do you think the disciplining of Members can be fairly and equitably performed by the individual houses of Congress? 2. Two of the recent Supreme Court decisions interpreting the Speech or Debate Clause involved allegations of bribes to Members of Congress. The opinions in the Johnson and Brewster cases-reserved for future consideration the question of a delegation by the Congress, in specific and narrowly defined terms, of our Article I, section 5, authority of disciplining our Members. Do you think, first, that such a delegation would be constitutional, and, if it is constitutional, is it wise? Would you suggest changes or additions to the existing congressional mechanisms for discipline? JURISDICTION OF THE COURTS Finally, the committee would appreciate receiving your comments on the following propositions: 1. Whenever it appears to the Court that the matter in controversy involves the property of the exercise of legislative power by the Congress or any of its components the court must dismiss the action for want of jurisdiction because the judicial review of decisions or actions in the legislative process would be tantamount to judicial exercise of legislative power, all of which is vested in the Congress, none in the courts. Note: This proposition is not in conflict with the Marbury v. Madison holding that a statute (the end-product of the legislative process) which conflicts with the Constitution is void to the extent of the conflict. 2. The rules and precedents of the House and Senate are internal legislative procedural matters, normally enforced by points of order, and may not in a subsequent court action form the basis for a review of the propriety of actions and decisions in the course of the legislative process. The courts must give full faith and credit to the final judgment of the Senate, the House of Representatives and the Congress. 3. There is no way to avoid a threshold, jurisdictional determination by the court that the subject matter of the controversy involves review of the exercise of legislative power. RESPONSES OF Ms. LAWTON TO SUPPLEMENTAL QUESTIONS 1 DEPARTMENT OF JUSTICE, Washington, D.C., August 17, 1973. Hon. LEE METCALF, Chairman, Joint Committee on Congressional Operations, U.S. Senate, Washington, D.C. DEAR SENATOR METCALF: Enclosed are my responses to the questions posed with your letter of August 1, 1973. As you will note, I have not felt free to respond to all of the questions raised. Unlike the distinguished professors, I participated in the panel as a representative of the Department of Justice, not as an independent "expert," and am therefore limited in my comments concerning pending cases in which the Department is involved, such as Doe v. McMillan. Nevertheless, I hope the attached is of some benefit to the Committee. Respectfully, Enclosure. MARY C. LAWTON, 1 None of the other participants in the roundtable discussion submitted responses to the supplemental questions. IMMUNITY IN CIVIL AND CRIMINAL PROCEEDINGS Before commenting on specific questions, it should be noted that the statement with respect to the holding in Doe v. McMillan is overly broad. The Court did not assert the power to censor official publications of the Congress. Indeed it held that no action would lie for official distribution of a report within the Congress. As to distribution outside the Congress the Court said that it had "little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, have been exceeded." Accordingly it remanded this question to the court below. 1. While we are not aware of any court-ordered embargo on a report, it might be conceded that judicial action relating to the legislative function of the Congress has greater impact on the legislative institution than action which affects the personal conduct of an individual member. Of course, it must be noted that definitions of the "legislative function" vary. 2. Article I, section 6 does not distinguish between civil and criminal proceedings with respect to the "Speech or Debate Clause" although such a distinction is made with respect to arrest immunity. The distinction on which the cases rest is what is and is not a "legislative function" protected by the Clause. 3. The case law, to date, recognizes an absolute immunity of the legislator for legislative activities infringing the constitutional rights of individuals. Kilbourn v. Thompson, 103 U.S. 168 (1880); Dombrowski v. Eastland, 387 U.S. 82 (1967); cf. Tenney v. Brandhove, 341 U.S. 367 (1951). Aides, however, do not share this absolute immunity. There is language in Gravel v. United States, 408 U.S. 606 618-622, however, that casts some doubt on both propositions. 4. Legislators are not immune from civil proceedings, they must still respond to such proceedings and claim privilege where applicable. 5. No recommendation. REPRESENTATION OF CONGRESSIONAL INTERESTS IN COURT 1. Representation of the Congress has normally been undertaken by the Department of Justice except in cases where there is a direct conflict or a purely internal legislative matter. The question, however, appears to posit something more than the defense of Congress when it is sued. What is contemplated is unclear. 2. See 1 above. 3. Title III of S. 1726 contemplates not only the defense of Congress by separate counsel but also initiation of civil litigation by the Congress and "intervention" before Grand Juries. These present different problems. Congress can and has sought independent representation to defend itself in litigation when the Department of Justice has declined representation. It is certainly arguable that this could be done on a permanent basis. Initiation of civil suits by the Congress is quite a different matter. The execution of the laws is a matter committed by the Constitution to the Executive Branch and cannot be usurped by the legislative branch. Springer v. Philippine Islands, 277 U.S. 189, 202 (1928). Generally the decision whether or not to initiate litigation on behalf of the United States is viewed as a distinctly executive power. Parker v. Kennedy, 212 F. Supp. 594, 595 (S.D.N. Y. 1963). It is questionable that Congress could constitutionally assume this power. See United States v. Cox, 342 F. 2d 167 (C.A. 5, 1965), cert. denied 381 U.S. 935 (1965). The concept of "intervention" before a grand jury is unheard of in American jurisprudence, either on behalf of the Congress or any private person. Even persons under investigation are not permitted counsel in the Grand Jury room. Rule 6(d), Fed. Rules Crim. Proc. It would violate all of our traditions and almost certainly the Constitution to permit a legislative body to appear as some form of "third party" before a Grand Jury. Thus, the concept of counsel expressed in Title III of S. 1726 poses several serious constitutional problems as well as policy questions. 4. There is no "definition" of attorney-client relationship between the Department of Justice and any branch, agency or official that it represents. The statutes authorizing the Attorney General to conduct and supervise litigation, e.g. 28 U.S.C. 516-519, 547, constitute the basic authority for representation. In addition, 2 U.S.C. 118 authorizes representation of persons sued on account of anything done "while an officer of either House of Congress in the discharge of his official duty" if such representation is requested. The practices of the Department with respect to representation of Congress, its members or its officers are described in some detail in a letter dated March 14, 1973 from Deputy Assistant Attorney General Jaffe (Civil Division) to Staff Counsel Raymond Gooch. These practices have not been formalized as rules or regulations nor are we aware of any general “writing” pertaining to the representation of congressional clients as a group. Individual case files may contain discussions of representation in particular fact situations. The representation of Congress, like the representation of judges may pose conflict situations. For example, the Department will represent a federal judge, on request, in a mandamus case but not, of course, if the Department itself is seeking mandamus. Similarly, the Department will not represent the Congress or a congressman on request if there is a potential conflict. Such conflicts can also arise, of course, within the Executive Branch itself where agency views and interests may differ. Where the Department undertakes representation, the "attorney-client relationship" is similar whether the client be an executive agency, the Congress or a federal judge. The uniqueness that exists is in the nature of government representation itself-e.g. government may confess error where private counsel could not-not in the nature of the particular "client." When the Department undertakes representation of a congressional client it insists on retaining control of the litigation and making the litigative decisions. Conflicts of opinion are normally resolved by discussion; if they are not in a given case, private counsel is recommended. The decisions are made by the appropriate litigating division in the same manner as in all other cases-decision by counsel handling the litigation in consultation with the "client," with review by supervisors where appropriate. Decisions as to appeals are made by the Solicitor General after discussion with the litigating division. THE SCOPE OF IMMUNITY FOR LEGISLATIVE ACTS 1. The situation posited is, of course, hypothetical and it would be inappropriate for a representative of the Department of Justice to suggest an answer. The time may come when the Department would be requested to represent a Member of Congress in such a situation and it would be undesirable to foreclose or prejudice argumentation by taking a position at this time. 2. Same comment as 1 above. It should also be noted that McMillan is still in litigation with the Department representing the Public Printer. CONSTITUTIONAL AUTHORITY TO DEFINE LEGISLATIVE ACTS 1. The question appears to raise the issue whether the Speech or Debate Clause is the only possible source of legislative authority to enact immunity provisions relating to Congress. If this is the thrust then the answer must be that this is not the only source of legislative authority. Congress could, for example, place restrictions on the jurisdiction of the federal courts-particularly the lower federal courts-in such a manner as to foreclose particular actions against the Congress. 2. Unlike Article II which vests "The executive Power" and Article III which vests "The judicial Power," Article I contains a more limited agent-"All legislative Powers herein granted." On its face "herein" might be read to refer only to Article I itself but it seems clear from reading the Constitution as a whole that "herein" means in this Constitution. Similarly, the Necessary and Proper Clause in Article I, section 8 would appear to apply to all of the powers vested in the Congress. These powers could relate to the legislating of immunity in a number of ways. As mentioned above, jurisdiction of the federal courts could be circumscribed. Offenses such as bribery and conflict of interest could possibly be defined to exclude members from liability. The authority to legislate for the District of Columbia might be utilized to exempt Members of Congress from all laws in the District, etc. As a technical matter, several variations could be used. The wisdom of using them is, of course, a separate matter. CONGRESSIONAL RESPONSIBILITY UNDER ARTICLE I, SECTION 5 1. There are serious and possibly even overwhelming difficulties in selfdisciplining by the Congress. As a political matter it would be extremely difficult for members to act against a colleague whose support they may need for some legislative matter. At the same time, it might be far too easy to abuse the discipline function with respect to the "maverick" member who, for example, continually criticizes the operations of the Congress. Aside from political difficulties, members simply do not have the time to devote to a discipline system which would encompass the necessary investigation and hearing to assure fairness. Such proceedings can be extremely time-consuming. At present, Congress also lacks the staff necessary to conduct such investigations free from other duties. 2. As the Committee may be aware the question of delegating disciplinary authority over members of Congress was argued by the Department in the Brewster case. The arguments in support of such delegation are set forth in the government's brief. The wisdom of delegating is a matter on which we express no opinion. JURISDICTION OF THE COURTS 1. While the general proposition stated is accurate in many, and perhaps most, instances of inquiry into the details of the legislative process, it is not universally true. In Powell v. McCormack, 395 U.S. 486, the Court held that it had jurisdiction to review the legislative act-exclusion-and pass on the merits even though the individual members could not be held liable. Similarly, the court would almost certainly review the legislative action in a contempt enforcement proceeding or a habeas corpus action based on summary contempt. Cf. Kilbourn v. Thompson, 103 U.S. 168. The immunity of the legislator is not an automatic bar to the review of the "propriety of the exercise of legislative powers." 2. Again the proposition is not universally true. For example, lack of committee jurisdiction under the standing rules may be raised and considered as a defense in a contempt of Congress prosecution. It might be noted, in addition, that the "full faith and credit" language of Article IV relates to State recognition of the acts of other States, not to judicial recognition of legislative precedents. 3. The statement is accurate inasmuch as the courts themselves must decide whether they have jurisdiction. FROM CONGRESSIONAL RESEARCH SERVICE CRS-1 Representation of Congress by Congressional and Private Legal There have been a number of instances where the constitutional powers and privileges of Congress have been brought into question in the Courts and its llouses, Members or Officials, as parties to the litigation have been represented therein by legal counsel.1/ A glance at a few of the cases reveals that a variety of individual counsel have performed the legal services involved, i.e., lawyer-members of Congress; lawyers from various congressional staffs, including in one instance a lawyer from the American Law Division, Congressional Research Service appointed as special counsel for the occasion; and private lawyers or law firms. In 13 of the 26 cases listed, below (Nos. 1-9, 13, 18, 20 and 26) private counsel was hired to represent the Congress. In this connection it is interesting to note that in the early days, the Attorney General of the United States and the U.S. Attorneys appointed in the judicial districts, supplemented their income by taking private cases, as they did in several of these cases (Nos. 1, 3, 4). It was not until after the Stewart case (No. 4) that the 1/ This section deals only with instances where the Congress or one of its Blouses have been involved in the exercise of its powers. Because of the doctrine of sovereign immunity, such suits are brought against the Officers or agents of Congress, by name. |