In the "factual allegations" portion of his complaint, Rep. Jenrette charged that beginning in 1976 "the defendants and others conspired to target the plaintiff in one investigation after another, beyond the standard for investigation spelled out in the FBI Charter, S-1612, which requires 'facts or circumstances that reasonably indicate that a person has engaged, is engaged, or will engage in an activity in violation of a criminal law of the United States."" [Complaint, June 11, 1980, at 6]

Additionally, Rep. Jenrette claimed that the defendant violated his constitutional due process rights by conspiring "to create crimes or entrap certain political targets with no predisposition to commit crimes in order to injure political reputations and political careers." [Id. at 7]

The complaint then proceeded to describe the history of the FBI undercover operation which subsequently became popularly known as "ABSCAM." According to Rep. Jenrette, in December 1979 defendants Weinberg, DeVito, and McCloud induced John Stowe to bring Rep. Jenrette to a Washington, D.C. townhouse where, despite Rep. Jenrette's obvious intoxication, defendants Weinberg, McCloud and DeVito offered Rep. Jenrette a $50,000 bribe. Allegedly, these defendants, by acting in a manner designed to give Rep. Jenrette the impression that they were members of organized crime, made Rep. Jenrette "afraid to report the defendants for fear of personal safety and fear that plaintiff's appearance at this location where defendants had discussed a bribe would work to plaintiff's detriment politically in an election year." [Id. at 11]

Finally, it was alleged that on February 2, 1980, FBI agents arrived at Rep. Jenrette's Washington, D.C. home and interrogated him despite his obvious intoxication. Because information regarding ABSCAM had allegedly been leaked by the defendants, the national news networks were at Rep. Jenrette's home when the FBI agents arrived. The media were thus "ready to publicize this interrogation and so ruin the career of the plaintiff." [Id. at 12] According to the plaintiff, "It was the malicious intent of the defendants to fraudulently gain admission from an intoxicated man, and the calculated presence of national networks on the plaintiff's front lawn was similarly intended to harass and confuse the plaintiff." [Id. at 13]

The factual allegations portion of the complaint concluded by stating that because of the "targeting scheme" and leaks, Rep. Jenrette suffered severe damage to his political career and reputation and "has incurred substantial legal fees of over $50,000 in order to defend his innocence . . . and has had to face tremendous humiliation before fellow Members of Congress and the public." [Id.]

Count I of the complaint stated that the defendants entrapped Rep. Jenrette, in violation of his Fifth Amendment substantive due process rights.

In Count II the plaintiff charged that the defendants, by maliciously leaking information of his impending interrogation to the press and by entrapping him, violated his Fifth Amendment procedural due process rights.

Count III charged that the targeting of Rep. Jenrette in one investigation after another violated the FBI Charter, 5 U.S.C. § 706,3 and the U.S. Constitution.

Under Count IV the plaintiff claimed that the defendants conspired to prevent the plaintiff, by intimidation and threat, from holding his Congressional office, in violation of 42 U.S.C. § 1985(1).* Finally, Count V alleged that the investigations against Rep. Jenrette had been, and continued to be, conducted in bad faith and solely for the purpose of trying to destroy his political career. The plaintiff stated that any prosecution of him would therefore be barred by the Fifth Amendment. Count V then concluded:

Because there is no possibility that the defendant can obtain constitutionally valid convictions of the plaintiff, and because the defendants' attempt to do so demonstrates bad faith and selective prosecution, the upcoming indictment and prosecution of plaintiff must be enjoined, or in the alternative, counsel for plaintiff should be permitted to prevent whatever witness he deems appropriate to the Grand Jury investigating the plaintiff. [Id. at 15-16]

By way of relief, Rep. Jenrette's complaint asked the court to permanently enjoin the defendants from indicting or prosecuting him through the use of the above-described illegally obtained information. The plaintiff also asked the court to issue a declaratory judgment that the defendants conspired to violate his rights. Lastly, Rep. Jenrette asked the court to grant him $1 million in compensatory damages and $10 million in punitive damages against all defendants individually.

On August 11, 1980, the Federal official defendants filed a motion to stay further proceedings in this case pending final disposition of the criminal case, United States v. Jenrette, Criminal Case No. 80-00289 then pending in the U.S. District Court for the District of Columbia. (See page 19 of this report for a discussion of that case.) In support of the motion, the defendants argued first that the instant case and the criminal case raised similar issues among similar parties. This being so, a stay of the civil proceedings would be appropriate, said the defendants, because resolution of the criminal case would moot, clarify, or otherwise affect various contentions in the civil case. Second, the defendants argued that a stay would prevent Rep. Jenrette from improperly using the broad rules of civil discovery to prepare his defense in the criminal case. On August 27, 1981, the defendants filed a motion to renew the stay of proceedings. On September 15, 1981, Judge Green ordered all proceedings, including discovery, stayed pending final disposi

35 U.S.C. § 706 requires reviewing courts to hold unlawful and set aside any agency action found to be in violation of procedures required by law.

42 U.S.C. § 1985 states: (1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties.

(3)... the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more or the conspirators.

tion of all proceedings, including appeals, in Rep. Jenrette's criminal case. The court did agree, however, to accept the filing of an amended complaint.

The amended complaint, which was filed on September 15, 1981, was modified to take into account the fact that subsequent to the filing of the original complaint Rep. Jenrette had been indicted on several bribery related counts. Thus, the amended complaint deleted Rep. Jenrette's original request that he be allowed to prevent "whatever witnesses he deems appropriate" from testifying at the grand jury hearings. Further, the amended complaint, unlike the original complaint, did not list Philip Heymann and Charles Ruff as defendants. It did, however, add as defendants FBI Agent John Good, Assistant U.S. Attorneys Thomas Puccio and John Jacobs, and former Deputy Assistant Attorney General Irvin Nathan. In all other respects the amended complaint was the same as the original complaint.

Status-The case is pending in the U.S. District Court for the District of Columbia.

Williams v. Bush

Civil Action No. 81-2839 (D.D.C.)

On November 23, 1981, U.S. Senator Harrison A. Williams, Jr. of New Jersey filed a complaint for declaratory and injunctive relief in the U.S. District Court for the District of Columbia. Named as defendants were George Bush, President of the U.S. Senate; Strom Thurmond, President Pro Tempore of the Senate; Howard H. Baker, Majority Leader of the Senate; Robert C. Byrd, Minority Leader of the Senate; Malcolm Wallop, Chairman of the Select Committee on Ethics ("Ethics Committee") of the Senate; Howell Heflin, Vice Chairman of the Ethics Committee; Howard Liebengood, Sergeant at Arms of the Senate; William H. Hildenbrand, Secretary of the Senate; and three staff members of the Ethics Committee.

In his complaint, Senator Williams alleged that the defendants, in the course of their investigation into the Senator's involvement in ABSCAM, violated several of his constitutional rights. In this regard, the complaint listed six separate constitutional violations. First, it was alleged that the Ethics Committee, which pursuant to Senate rules conducted the first phase of the Senate's investigation, violated the plaintiff's Fifth and Sixth Amendment rights by performing the combined duties of an investigatory body, an accusatory body, and an initial trier of fact. Second, the Senator alleged that Ethics Committee Chairman Wallop and Vice Chairman Heflin violated his constitutional privilege of spousal immunity by taking testimony from his wife, Jeanette Williams, and then providing this testimony, which involved the criminal case against Senator Williams, to the Justice Department. Third, Senator Williams stated that "certain members of the Ethics Committee and/ or its staff" violated his Fifth Amendment rights by obtaining from the Justice Department, without a court order, the testimony of witnesses who appeared before the grand jury that indicted him. Fourth, Senator Williams alleged that Chairman Wallop, Vice Chairman Heflin, and Ethics Committee staff violated his Sixth

Amendment rights by scheduling hearings on his involvement in ABSCAM in such a manner that it was impossible for his attorney to adequately prepare for them. Fifth, the Senator claimed that Chairman Wallop and Vice Chairman Heflin violated his Fifth Amendment rights (and also violated Senate Rule XXVI) by refusing to give him access to the Ethics Committee's executive session transcripts. Sixth, the "Senate Leadership" (i.e. defendants Bush, Thurmond, Baker, and Byrd) allegedly violated Senator Williams' Sixth Amendment rights by indicating that the Senator would not be allowed to present evidence, compel witnesses, or have the assistance of counsel during the upcoming consideration by the full Senate of the resolution (S. Res. 204, 97th Cong., 1st Sess. (1981)) to have Senator Williams expelled.

By way of relief, Senator Williams asked the court to preliminarily and then permanently enjoin the Senate from proceeding with the expulsion resolution "unless and until plaintiff is provided the full exercise of his Fifth and Sixth Amendment rights in regard to those proceedings . . . scheduled for December 3, 1981." [Complaint, November 23, 1981, at 17] He also asked that the court render a declaratory judgment that any proceeding regarding the expulsion resolution would have to be in conformity with his Fifth and Sixth Amendment rights.

On November 27, 1981, Senator Williams filed an application for a temporary restraining order to prevent the Senate leadership from going forward with the December 3rd expulsion hearing "unless and until plaintiff is afforded elemental due process rights at such Senate proceedings." [Motion for Temporary Restraining Order, November 27, 1981, at 1] In an accompanying memorandum, Senator Williams argued that in United States v. Ballin, 144 U.S. 1 (1892) the Supreme Court made clear that neither house of Congress could adopt rules which ignore constitutional restraints or violate fundamental rights. Further, said Senator Williams, an expulsion hearing is quasi-criminal in nature and thus implicates rights of the highest order. The full participation and assistance of counsel in so serious a matter, concluded Senator Williams, was an essential element of due process of law.

On the same day, November 27, the defendants filed a memorandum in opposition to Senator Williams' application for a temporary restraining order. The defendants argued, first, that Senator Williams' application was not fit for judicial resolution. In this regard, the defendants argued that Senator Williams' application raised hypothetical and therefore nonjusticiable issues in that the Senate "has not yet determined the procedures it will use in considering S. Res. 204." [Memorandum of Defendants in Opposition to Application for a Temporary Restraining Order, November 27, 1981, at 8] In reality, said the defendants, Senator Williams was objecting to "the procedures which the Senate Majority Leader and Minority Leader will recommend to the Senate. But as the Leadership has advised the plaintiff, the power to determine procedures lies with the Senate itself." [Id. (footnote omitted)] In fact, said the defendants, there was a substantial question as to whether the defendants could provide the relief Senator Williams sought, since "the Senate is free to override the rulings of its presiding officer and to reject the recommendations of its leaders." [Id.] In sum, the defendants

argued that the questions presented were not ripe for adjudication. Moreover, claimed the defendants, the granting of the relief requested would violate the doctrine of separation of powers. Specifically, the defendants charged that such relief would violate the Speech or Debate Clause of the U.S. Constitution' and the political question doctrine.

The defendants next advanced their second major argument against the application for a temporary restraining order, namely, that Senator Williams had failed to show a substantial probability of succeeding on the merits. According to the defendants, Senator Williams' chance of ultimate success was remote for two reasons. First, the expulsion of a senator pursuant to Article I, Section 5, Clause 2, of the Constitution presented a nonjusticiable political question. Second, even if the expulsion was justiciable, the procedures used by the Senate accorded the plaintiff due process.

The application for a temporary restraining order was argued before District Judge Gerhard A. Gesell on the afternoon of November 27. The Judge denied the application, agreeing with the defendants that the application was premature and that it asked the court to intervene in matters committed to the Legislative branch. Said the court:

Apart from the deference that must be shown by the Court to a coordinate body of the Government, the application made at this stage is clearly premature.

As far as the Court is aware, there has never been an instance in our history where the Federal Courts have presumed to tell a body of Congress, in the middle of its deliberations, how it should deliberate; and this Court does not intend to do it. [Hearing on Motion for Temporary Restraining Order, November 27, 1981, Transcript at 27-28] The court further stated that in its view "the chances of success on the merits on these issues are non-existent." [Id. at 28]

On December 1, 1981, at the request of Senator Daniel Inouye, who asked for more time to prepare for the debate on the explusion resolution, Majority Leader Baker postponed Senate consideration of the resolution until the beginning of the next session of Con

gress.

On December 23, 1981, the defendants filed a motion to dismiss the complaint. In an accompanying memorandum, the defendants began by asserting that even assuming, arguendo, that the courts were empowered to review Senator Williams' explusion hearing, such review would have to await the outcome of the Senate's deliberations. Thus, the defendants repeated their earlier arguments that the plaintiff's challenge was not ripe for adjudication. In support of this contention, the defendants cited Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967) and the concurring opinions of Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) and Justice Powell in Goldwater v. Carter, 444 U.S. 996, 998 (1979). Next, the defendants asserted, as they had

The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]