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Focusing next on the Cannon case, the Clerk termed the Government's assertion that it was clearly distinguishable "myopic" and "wholly untenable.” He noted:

The theory of Plaintiff's claim in that suit was the same as
the United States

States Attorney's here, namely that
“[a]ppellant theorizes that Senator Cannon's authorization
of salary payments to Sobsey while the aide was not per-
forming official legislative and representational duties'
made out an actionable false claim," 642 F.2d at 1376, and
that “Senator Cannon was unaware of the nature of his
assistants' activities, yet authorized these salary pay-
ments." [Id.] In fact, the plaintiffs in each case have exact-

ly the same theory of liability. (Id. at 7] The Clerk concluded:

The United States Attorney next asserts that the lack of
a consensus within the Senate on standards for campaign
work by staff has been resolved in the House with respect
to telephone use through adoption of 2 U.S.C. § 46(g) and
the so-called "strictly official" standard. First, as the
Cannon Court stated, and which the Response blithely ig-
nores:

Even assuming, as we fairly may, that the funds
appropriated were intended solely to compensate
staffers for performance of their official duties,
we are left with the perplexing question whether
campaign work is official activity.

642 F.2d at 1380.
The Cannon Court assumed an "official" standard and
determined it lacked the tools to resolve the question.
Moreover, there is no evidence whatsoever to which the
United States Attorney can point evidencing that the
House and Senate “have grappled” with what constitutes
official telephone use, either in the legislative history of 2
U.S.C. $ 46(g), or elsewhere. The United States Attorney
simply begs the question by stating that the strictly offi-
cial" standard has been adopted, without a hint of how a
court will apply that standard to legislative telephone use.

The adoption of the statute relied upon by the United States Attorney is indistinguishable from the standard of "official” assumed to govern appropriated monies and fails to advance the political question analysis established by

Cannon. [Id. at 8-9] On June 23, 1981, Rep. Eilberg filed a motion to intervene in th motion to quash the subpoena and a separate motion to quash. ] the latter, he incorporated by reference the arguments made by th Clerk and further asserted that the compelled production of th documents pursuant to the subpoena would violate the Speech Debate Clause.

Also on June 23, the Government filed a response to Rep. berg's motion in which it incorporated its response to the Clerk motion to quash. The Government further maintained that Re

E E

Eilberg's Speech or Debate Clause argument was without merit because the Clause provided only a testimonial and use privilege and immunity as to legislative acts, "rather than a cloak of secrecy”. Citing In re Grand Jury Investigation, 587 F.2d 589, 597 (3rd Cir. 1978), the Government asserted that the privilege as applied to the records and third-party testimony sought in this case “is one of nonevidentiary use, not of nondisclosure.”

On September 23, 1981, the Government filed a motion for a protective order covering the telephone records it was attempting to obtain by subpoena from the Clerk of the House. In an accompanying memorandum, the Government noted that such records might generally be disposed of after a certain period of time and it had received no assurances from the Clerk that the documents would in fact be preserved until the conclusion of the litigation regarding the subpoena.

On October 2, 1981, the Clerk filed an opposition to the Government's motion for a protective order, stating that the "records at issue are no more in jeopardy of destruction than they were on the day the United States Attorney first caused a subpoena for their production.” (Opposition of the Clerk of the House to Motion for a Protective Order, October 2, 1981, at 1] Arguing that Congress and its officers enjoy a “presumption of propriety” with respect to their handling and treatment of documents, the Clerk contended that the Government could not point to a single instance where he had destroyed evidence determined by the courts to be necessary. To the contrary, he declared, "[i]n the last several years alone, the Clerk and other officers and employees have complied with scores of subpoenas for records, further belying any predicate for rebutting Congress' presumption of propriety and regularity.” (Id. at 3] Finally, the Clerk asserted:

Aside from the lack of a basis for the relief requested, the protective order seeks nothing less than the resolution of the ultimate issue in this case: the justiciability of a lawsuit by the United States Attorney seeking

to define the scope of official congressional telephone use. That issue needs to be resolved before the rights of a coordinate

branch are pre-emptorily cut off. (Id. at 4) On October 9, 1981, District Judge Thomas A. Flannery issued an order denying the Government's motion for a protective order. The judge found that the Government had not met its burden of showing that “good cause” existed for the issuance of such an order since it had offered no specific evidence to indicate that the subpoenaed documents were in any tangible danger. According to the judge, the Government had not even contended that the entity with 'final authority to guarantee the preservation of the documents—the House-had in any way jeopardized the materials. Given the "presumption of propriety enjoyed by Congress and its officers, Judge Flannery found that fact fatal to the Government's argument.

On October 19, 1981, Judge Flannery issued an order denying the Clerk's motion to quash the subpoena. In a memorandum opinion filed simultaneously, Judge Flannery found that “[i]t is clear that the Clerk's motion ... seeks to have this court reconsider argu

ments exhaustively made to and considered by Judge Pollack (sic)" in his ruling on the motion for a determination of relevancy and materiality in the U.S. District Court for the Eastern District of Pennsylvania. [Memorandum Opinion, October 19, 1981, at 4] Therefore he ruled that under the "law of the case" doctrine he should refrain from deciding an issue which had already been de finitively resolved by the Pennsylvania court. Judge Flannery explained:

[I]t is evident that Judge Pollack's decision granting the
motion for a determination of relevancy and materiality
would normally constitute the law of the case in this
matter. The ruling on the motion for a determination of
relevancy and materiality decided the precise issue pre-
sented by the Clerk's motion to quash the subpoena:
whether the underlying claim by the United States against
Representative Eilberg presents a non-political, justiciable
controversy involving the application of discernible judicial
standards. See, e.g., ACF Industries, Inc. v. Guinn, 384 F.2d
15 (5th Cir.), cert. denied, 390 U.S. 949 (1967). Judge Pol-
lack came to his conclusion following complete briefing by
the parties. The opinion identified and thoroughly consid-
ered all arguments raised by the Clerk, as well as those
propounded by the United States Attorney. The opinion
painstakingly maps out the circumstances surrounding the
passage of sections 46(g) and 57, prior to determining that
section 46(g) delegates authority to the executive and, de-
rivatively, to the judiciary, to assess whether phone calls
of members of Congress are "strictly official." Finally, the
opinion, upon consideration of leading Supreme Court pre-
cedents, concludes that the delegation discernible in sec-
tion 46(g) does not violate separation of powers principles

embodied in the Constitution. (Id. at 5-6] Turning to the Clerk's argument that "law of the case" doctrine was inapplicable because Judge Pollak's decision was neither final nor appealable, Judge Flannery noted that the doctrine did not require, as a precondition of its application, the issuance of a final, appealable judgment, resolving all rights and liabilities of the parties. Instead, he maintained, “seeking to minimize expenditure of judicial resources and energy on matters already decided, the doctrine is triggered once a final decision is made on a particular issue." [Id. at 6] The fact that the Clerk was not a party to the Pennsylvania case and could not appeal Judge Pollak's decision also did not sway the court:

The Clerk does not provide any precedent which holds that
an interested party's inability to appeal a decision negates
the law of the case doctrine. At most, the non-appealability
of a ruling would be one factor to be considered in apply-
ing the doctrine. Where, as here, the complaining party
has received a thorough and complete hearing, and an-
other party, Representative Eilberg, can and will surely
appeal any adverse ruling, the doctrine should continue to
be applied. Another factor justifying this conclusion is that

the Clerk was, apparently, not barred in any way from in-
tervening in the case in Pennsylvania and thereby preserv-
ing a right to appeal from Judge Pollack's holding. (Id. at

7, n. 2] With respect to the implications of the Cannon case, Judge Flannery agreed with the Government that it was distinguishable from the case at bar, noting that in section 46(g) Judge Pollak found "a specific statutorily prescribed standard for Judicial assessment of the propriety of Representatives' phone calls, whereas the court in Cannon could perceive no coherent Congressional command concerning the legality of employing personnel in reelection campaigns." [Id. at 9]

Finally, with respect to intervenor Rep. Eilberg's Speech or Debate Clause argument, Judge Flannery held that while Judge Pollak's opinion did not expressly analyze whether Rep. Eilberg's rights would be violated by the Government's investigation into the telephone records, it was clear that the Pennsylvania court presumed that the simple subpoena of the documents could not contravene the Congressman's constitutional interests. “[T]he Speech or Debate Clause may accord Representative Eilberg rights to exclude particular documents from evidence but it in no way curtails the power of the United States to attain these records through otherwise legitimate judicial processess.(Id. at 11]

On November 10, 1981, Rep. Eilberg filed a notice of appeal of Judge Flannery's October 19 order to the U.S. Court of Appeals for the District of Columbia Circuit. No. 81-2205]

On November 12, 1981, Rep. Eilberg filed a motion in the district court to stay the Clerk's deposition and for a protective order pending the disposition of his appeal. At a status call held the same day, this motion, along with a motion by the Clerk for section 1292(b) certification, was argued before Judge Flannery and denied. (The Judge filed a formal order reflecting these denials on November 17.) Later on November 12, the Deputy Clerk's deposition was held and virtually all the requested documents were supplied to the Government.

On November 23, 1981, a stipulation was entered into between Rep. Eilberg and the Government that the pending appeal would be dismissed, and was approved by Judge Flannery. On February 25, 1982, pursuant to this stipulation, the appeals court dismissed the appeal and terminated the docket.

Other than limited discovery, there was scant docketed activity in the case-in-chief in the district court in Pennsylvania after Judge Pollak's October 22, 1980 opinion denying Rep. Eilberg's motion to dismiss the complaint. As noted above, the focus of the litigation during much of 1981 was shifted to the district court in the District of Columbia where the Government's subpoena to the Clerk of the House was being litigated. While this was occurring, on October 8, 1981, Rep. Eilberg asked the Pennsylvania court for a protective order against his responding to the Government's interrogatories and against his interrogation at deposition. The basis of his request, once again, was his asserted privilege under the Speech or Debate Clause. Alternatively, Rep. Eilberg sought a deferral of a decision on the Government's entitlement to discovery until after the District of Columbia proceedings were concluded.

On November 25, 1981, the Government filed a reply to Rep. Eilberg's motion for a protective order, noting that Judge Flannery had issued his ruling in the District of Columbia court on October 19 and that the requested discovery had subsequently gone forward. Because of this, the Government pointed out, Rep. Eilberg's alternative request for deferral of discovery was moot. With respect to the Speech or Debate Clause argument, the Government again contended that it was “completely without foundation.” Once more citing In Re Grand Jury Investigation, supra, the Government maintained that “a congressman may be required to testify in order to vindicate what he believes to be a valid constitutional right-the Speech or Debate Clause privilege." (Reply of Plaintiff United States To Defendant Eilberg's Motion for Protective Order, November 25, 1981, at 2-3]

Status—The case is pending in the U.S. District Court for the Eastern District of Pennsylvania. The court had not ruled on the defendant's motion for a protective order as of March 1, 1982.

The complete text of the October 22, 1980 opinion of the Pennsylvania district court is printed in the “Decisions' section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the October 19, 1981 memorandum opinion of the District of Columbia district court is printed in the “Decisions" section of this report at page 615. United States v. Lederer

Civil Action No. 81-3028 (E.D.N.Y.) In May 1980, U.S. Representative Raymond F. Lederer of Pennsylvania was indicted by a Federal grand jury on four counts of bribery. In January 1981, a jury found him guilty on all four counts, and on August 13, 1981 he was sentenced to three years imprisonment and fined $20,000. (See page 78 of this report for a discussion of that case.)

As a follow-up to that criminal prosecution, the Government filed a civil action against Rep. Lederer, Angelo J. Errichetti, Louis C. Johanson, and Howard L. Criden on September 17, 1981 in the U.S. District Court for the Eastern District of New York. The Government's complaint contained six counts. Jurisdiction was asserted under 28 U.S.C. § 1345.

Count I alleged that between July 26, 1979 and November 1, 1979 the defendants conspired to violate 18 U.S.C. § 201 (bribery and fraud). Specifically, Count I alleged that the defendants agreed that in return for $50,000 (to be shared among them) Rep. Lederer would use his influence as a U.S. Representative to assist foreign businessmen in their efforts to immigrate to the United States Count I further stated that on September 11, 1979 undercover FBI agents actually delivered this $50,000 bribe to the defendants. After alleging that $4,500 of the $50,000 sum was subsequently recovered by the United States, Count I concluded by requesting that the court find that the defendants, jointly and severally, owed the

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