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United States $45,500 (plus pre-judgment interest) in "wrongfully received" money.

Count II repeated the allegations of Count I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $45,500 which they continue to retain, all at the expense of the United States of America.” Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $45,500 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $45,500 "rightfully belongs to the United States of America." A finding of joint and several liability was again requested.

Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Lederer "breached his fiduciary duty to the United States to render fair, honest, and uncorrupted service as a Member of Congress." Under Count IV the Government asked that Rep. Lederer be ordered to pay $45,500 plus pre-judgment interest.

Count V repeated the allegations of Counts I and IV and further
alleged that “defendant Lederer holds all sums that he wrongfully
received in trust for the United States of America.” Under Count
V the Government again asked that Rep. Lederer be ordered to pay
$45,500 plus pre-judgment interest.
Count VI did not involve Rep. Lederer.
On November 19, 1981, Rep. Lederer filed an answer in which he
denied the material allegations of the complaint and further
averred that as to each of the first five counts of the complaint the
Government failed to point out that it was a party to the alleged
fraud. As a result, answered Rep. Lederer, those counts alleged
facts which "form the basis of a contract or agreement in violation
of public policy. As such the contract referred to is void as against
public policy and the Court should not enforce such a contract.

Status—The case is pending in the U.S. District Court for the
Eastern District of New York.
United States v. Myers

Civil Action No. 81-3026 (E.D.N.Y.) In May 1980, U.S. Representative Michael O. Myers of Pennsylvania was indicted by a Federal grand jury on three counts of bribery. In August 1980, a jury found him guilty on all three counts, and on August 13, 1981 he was sentenced to three years imprisonment and fined $20,000. (See page 35 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. Myers, Angelo J. Errichetti, Howard L. Criden, and Louis C. Johanson 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 February 2, 1980 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. Myers 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 August 22, 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 United States $45,000 (plus pre-judgment interest) in "wrongfully received" money.

Count II repeated the allegations of Count I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $45,500 which they continue to retain, all at the expense of the United States of America.” Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $45,500 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $45,500 “rightfully belongs to the United States of America.” a finding of joint and several liability was again requested.

Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Myers "breached his fiduciary duty to the United States to render fair, honest, and uncorrupted service as a Member of Congress.” Under Count IV the Government asked that Rep. Myers be ordered to pay $45,500 plus pre-judgment interest.

Count V repeated the allegations of Counts I and IV and further alleged that "defendant Myers holds all sums that he wrongfully received in trust for the United States of America." Under Count V the Government again asked that Rep. Myers be ordered to pay $45,500 plus pre-judgment interest.

Count VI did not involve Rep. Myers.

StatusThe case is pending in the U.S. District Court for the Eastern District of New York. United States v. Thompson and United States v. Murphy

Civil Action No. 81-3027 (E.D.N.Y.) In June 1980, U.S. Representatives Frank Thompson, Jr. of New Jersey and John M. Murphy of New York were indicted by a Federal grand jury on five counts of bribery. In December 1980, a jury found each of them guilty on three counts, and on August 13, 1987, they were sentenced. (See page 64 of this report for a discussion of those cases.)

As a follow-up to the criminal prosecutions, the Government filed a civil action against Reps. Thompson and Murphy on Sep tember 17, 1981 in the U.S. District Court for the Eastern District of New York. The eight count complaint also named Howard L. Criden, Angelo J. Errichetti, and Louis C. Johanson as defendants Jurisdiction was asserted under 28 U.S.C. § 1345.

Count I alleged that between July 26, 1979 and February 2, 1980 the defendants conspired to violate 18 U.S.C. § 201 (bribery and fraud) and 18 U.S.C. $ 203 (conflict of interest). Specifically, Count alleged that the defendants agreed that in return for $100,000 (to be shared among them) Reps. Thompson and Murphy would use their influence as U.S. Representatives to assist foreign business men in their efforts to immigrate to the United States. Count I further stated that in October 1979 undercover FBI agents actually delivered $100,000 in bribery money to the defendants. After alleging that $5,000 of the $100,000 was subsequently recovered by the United States, Count I concluded by requesting that the court find that the defendants, jointly and severally, owed the United States $95,000 (plus pre-judgment interest) in "wrongfully received" money.

Count II repeated the allegations of Count I and further alleged that the conduct of the defendants resulted in their being "unjustly enriched by $95,000 which they continue to retain, all at the expense of the United States of America.” Again, the Government, in Count II, asked the court to find the defendants jointly and severally liable for $95,000 plus pre-judgment interest.

Count III repeated the allegations of Count I and further alleged that the aforementioned $95,000 "rightfully belongs to the United States of America.” A finding of joint and several liability was again requested.

Count IV repeated the allegations of Count I and further alleged that by his conduct Rep. Thompson “breached his fiduciary duty to the United States to render fair, honest and uncorrupted service as a Member of Congress.” Count IV sought judgment against Rep. Thompson for not less than $47,500, this sum representing the sum of money Rep. Thompson allegedly personally received ($50,000) minus the amount subsequently recovered by the United States ($2,500). Pre-judgment interest was also sought.

Count V repeated the allegations of Count I and further alleged that by his conduct Rep. Murphy, like Rep. Thompson, breached his fiduciary duty to the United States. Count V sought judgment against Rep. Murphy for not less than $47,500, this sum representing the sum of money Rep. Murphy allegedly personally received (350,000) minus the amount subsequently recovered by the United States ($2,500). Again, pre-judgment interest was also sought.

Count VI repeated the allegations of Counts I and IV and further alleged that "defendant Thompson holds all sums that he wrongfully received in trust for the United States of America." Under Count VI the Government asked that Rep. Thompson be ordered to pay $47,500 plus pre-judgment interest.

Count VII repeated the allegations of Counts I and V and further alleged that “defendant Murphy holds all sums that he wrongfully received in trust for the United States of America.” Under Count VII the Government asked that Rep. Murphy be ordered to pay 347,500 plus pre-judgment interest.

Count VIII did not involve either Rep. Thompson or Rep. Murphy.

Status—The case is pending in the U.S. District Court for the Eastern District of New York.

III. The Right of Members of Congress to Sue (Standing) McClure v. Reagan (formerly Carter)

No. 81-186-ATX (U.S. Supreme Court)

On September 25, 1979, U.S. Senator James A. McClure of Idaho filed suit in the U.S. District Court for the District of Idaho against James Earl Carter, President of the United States, and J. Stanley Kimmitt, Secretary of the U.S. Senate, challenging the nomination and confirmation of U.S. Representative Abner J. Mikva of Illinois as a judge of the U.S. Court of Appeals for the District of Columbia Circuit. The complaint sought a declaration that Rep. Mikva was constitutionally ineligible for appointment as a circuit court judge. The action also sought to enjoin defendant Kimmitt from communicating to the President the results of the Senate's vote of confirmation of Rep. Mikva as a circuit court judge. Jurisdiction was alleged to exist under 28 U.S.C. $$ 1331 (federal question) and 2201 (de claratory judgment).

Count one of the complaint alleged that while Rep. Mikva was a Member of the House, the salary of the Federal judiciary was increased under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 88 351-361), as adjusted by section 205(a)(1) of the Executive Salary Cost-of-Living Adjustment Act (28 U.S.C. $ 461). Subsequently, during the same Congressional term, the President nominated Rep. Mikva to a civil office (a circuit court judgeship) allegedly in violation of the Ineligibility Clause of the U.S. Constitution. The Ineligibility Clause provides that "no Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such a time; and no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office." (art. I, § 6, cl. 2]

Count two requested that pursuant to Rule 65 of the Federal Rules of Civil Procedure defendant Kimmitt be prevented from notifying the President of the Senate's confirmation of Rep. Mikva as judge of the circuit court of appeals.

During the confirmation process involving Rep. Mikva, Senator McClure and a number of his colleagues argued against his appointment because they felt he was philosophically unsuited for the appeals court, as well as constitutionally ineligible for appointment because of the proscriptions of the Ineligibility Clause. Nonetheless, on September 25, 1979, the same day the complaint was filed, de fendant Mikva was confirmed by the Senate (125 Cong. Rec. $13363 (daily ed. Sept. 25, 1979)] and the next day defendant Carter signed the commission formalizing the appointment.

After the Senate voted to confirm Judge Mikva, Senator McClure and others proposed a new jurisdictional statute relevant to the case. On October 10, 1979, the Senate attached the proposed statute as a rider to an appropriations bill (125 Cong. Rec. S14320, S14325, (daily ed. Oct. 10, 1979)] and the House of Representatives agreed to it two days later. [Id., H9081 (daily ed. Oct. 12, 1979)] The rele vant portion of the new statute provided as follows:

Any additional payment (to federal officials) under existing law is not to be construed as an increase in salary or emoluments within the meaning of Article I, section 6, clause 2 of the Constitution, except that:

(1) Any Member of Congress, whether he voted to confirm or not to confirm the appointment of any judge appointed during the 96th Congress to the United States Court of Appeals for the District of Columbia, or whether he abstained from, or was not present for such vote, may bring a civil action in the United States District Court for the District of Columbia or in any United States District Court in the State he represents to contest the constitutionality of the appointment and continuance in offfice of said Circuit Judge on the ground that such appointment and continuance in office is in violation of Article I, section 6, clause 2 of the Constitution;

(2) The designated United States District Courts shall have exclusive jurisdiction, without regard to the sum or value of the matter in controversy, to determine the validity of such appointment and continuance in office;

(3) Any action brought under this section shall be heard and determined by a panel of three judges in accordance with the provisions of section 2284 of title 28, United States Code. Any appeal from the action of a court convened pursuant to such section shall lie to the Supreme Court; and

(4) Any judge designated to hear any action brought under this section shall cause such action

to be in every way expedited. (Act of October 12, 1979, Public Law 98–86, § 101(c), 93 Stat. 656 (not codified)] On October 16, 1977, the plaintiff moved to dismiss defendant Kimmitt. That motion was granted the next day.

On November 6, 1979, the plaintiff filed an amended complaint, again naming President Carter as a defendant and adding Judge Mikva as a defendant. Jurisdiction was once more premised on 28 U.S.C. $$ 1331 and 2201, but was additionally alleged to exist under section 101(c) of the recently enacted Public Law 96-86. Pursuant to the latter statute's terms, a three-judge court was requested.

On November 27, 1979, President Carter answered the amended complaint and asked that the action be dismissed, asserting that the complaint did not present a justiciable case or controversy, that the court lacked subject matter jurisdiction, that Senator McClure lacked standing, and that the complaint failed to state a claim upon which relief could be granted.

On December 5, 1979, Judge Mikva submitted a motion to dismiss, contending that the court lacked personal jurisdiction over him. The judge argued that he had not been properly served with the summons and complaint, since neither the Idaho long-arm statute (Idaho Code § 5-514 (1979)) nor the relevant Federal statute (28 U.S.C. § 1391(e) (1976)) was applicable, the former because the complaint had not alleged that he had performed any of the requisite acts in Idaho, and the latter because it did not reach Federal judges but only officials of the Executive branch.

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