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Without specifically saying so, IBP implied that such a conspiracy might have occurred here.

Second, IBP asserted that during the course of Mr. Bagley's testimony, committee staff members disseminated to the press a document containing both a summary of Mr. Bagley's testimony and Mr. Bagley's responses to questions posed to him by Mr. Fitzgibbons of the committee staff. After stating that under Hutchinson v. Proxmire, 443 U.S. 111 (1979) (see page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case), the voluntary republication of defamatory material is not protected by the Speech or Debate Clause, IBP asserted that Mr. Bagley recently testified that he did not know whether his answers to Mr. Fitzgibbons' questions, as contained in the document released to the press, accurately reflected his actual answers (which had been given to Mr. Fitzgibbons orally with no stenographer present). IBP argued that determining whether the committee document accurately reproduced Mr. Bagley's statements was a critical issue in the defamation case, and was not an issue protected from questioning by the Speech or Debate Clause.

Third, IBP claimed that Rep. Smith pressured the Antitrust Division of the Justice Department, the Federal Trade Commission, and the Securities and Exchange Commission to investigate IBP. Since, according to IBP, Hutchinson v. Proxmire, supra, and United States v. Brewster, 408 U.S. 501 (1972) had held that follow-up communications between Congressmen (or their staffs) and Federal agencies are not covered by the Speech or Debate Clause, compelling the de ponents to answer questions regarding Rep. Smith's correspondence with Federal agencies would be permissible under the Clause.

IBP's final argument was that the Speech or Debate Clause could not create a personal privilege for the aides themselves. Citing Gravel v. United States, supra, IBP claimed, first, that the deponents could invoke Speech or Debate Clause immunity only after showing that a Member of Congress had authorized them to invoke the Clause and, second, that no such showing had been made in this case. Without such authorization, continued IBP, it would be impossible for a court to know whether the Congressmen who employed the staff members agreed with their Speech or Debate Clause contentions.

On March 2, 1981, the Congressional staff members filed a reply memorandum to IBP's opposing brief in which they argued that, contrary to IBP's claims, they had posited "'no sweeping claim of congressional immunity' but rather invoke[d] the [Speech or Debate] Clause to protect core legislative activity, i.e., the conduct of a committee hearing and legislative acts performed in connection therewith, from being questioned' outside the House.” [Congressional Deponents Reply Memorandum To IBP's Opposing Brief, March 2, 1981, at 1]

Turning first to the question of whether the aides could invoke Speech or Debate Clause protection without specifically identifying the Members who authorized their claims, the staff members asserted that "authorization abounds" (Id. at 2] for their use of the Clause. Pointing in particular to House Resolution 722, supra, and its legislative history, the staff aides argued that:

Whatever the force and effect of the language cited by IBP
from Gravel v. United States, 408 U.S. 606, 621-622 n. 13
(1972) concerning the ability of a Member to "repudiate"
or "waive" an aide's claim of privilege, that is not an issue
here, since far from repudiating these claims, two chair-
men, the Speaker and the joint leadership have been noti-
fied of the motion to quash, as envisioned by House Reso-
lution 722, and no Member has repudiated the claim. (Id.

at 3-4 (footnote omitted)] With respect to the coverage of the Speech or Debate Clause, the staff members maintained that even though they were subpoenaed as non-party witnesses in a private suit, the Clause required that the subpoena be quashed because it prohibited the "questioning" of Members or aides regarding legislative acts whether or not they were parties to the underlying litigation. They noted that the Gravel case relied upon by ĪBP was just such a third-party case.

Responding to IBP's arguments based on Hutchinson v. Proxmire, supra, the staff members contended that they were inapplicable because Chairman Smith's statements and the disseminated documents summarizing Mr. Bagley's testimony were part of a regularly convened committee hearing, and constituted "a practice which is regularly followed in the Congress to facilitate the hearing process.(Id. at 7] According to the Congressional aides, IBP could not ground its discovery in any acts which occurred during a regularly convened committee meeting. Further, they claimed:

Even if the acts characterized by IBP as "press releases" do constitute unprivileged dissemination, nothing in Hutchinson, despite IBP's unsupported assertion that under Hutchinson a press release serves to open to discovery the “factual foundation” for the release, supports the contention that activity performed outside the scope of the Clause subjects activity within the Clause to questioning.

(Id. at 8] Finally, the staff members argued that the Hutchinson case could not be extended to hold that a Member or aide who disclosed to the public or a Federal agency the existence of a legislative act opened that legislative act, and related legislative acts, to "wholesale searching judicial questioning." "Whether . . . clearly legislative actions were later followed by or referred to in a dissemination deemed outside the legislative sphere a la Proxmire does not affect their status as legislative acts.” (Id. at 9]

On March 26, 1981, U.S. District Court Magistrate James Hodges issued an order allowing IBP to file a supplemental brief opposing the Congressional deponents' motion to quash. Again, IBP claimed that no Member of Congress had invoked the Speech or Debate Clause to protect the witnesses, which, the company maintained, was required under both House Resolution 722 and the Gravel decision. IBP also argued that the General Counsel to the Clerk of the House (the counsel for the staff members) could not invoke the Clause because the Clerk himself was not empowered to do so. Second, IBP reiterated its assertion that the Speech or Debate Clause should not apply to this case because it involved "subpoenas

for testimony and documents served on congressional employees in a private, civil diversity case in which the liability of neither those employees nor any Member of Congress is in question,” and be cause it was "very remote from the concerns about executive or judicial harassment of federal legislators that led to the inclusion of the clause in the Constitution.” (IBP's Supplemental Brief Opposing Fitzgibbons-Wultich-Chatman Motion to Quash, March 18, 1981, at 3-4] Third, IBP again contended that the Hutchinson case required denial of the motion to quash. “[E]ven if the 'facts' upon which the statements in the [disseminated] documents were premised were derived from the Committee's investigation and interviews with Bagley, under Hutchinson once the documents were disseminated to the public the privilege was necessarily lost as to the factual basis for those statements.” (Id. at 6] Fourth, IBP asserted that the staff members had "conceded" their lack of immunity concerning contacts with Federal agencies by not addressing the point in their reply brief. Finally, IBP argued that the documents they sought did not come within Speech or Debate protection, or, at the least, were subject to a separate inquiry to determine whether or not they reflected legitimate legislative activity.

On May 11, 1981, the Congressional staff members filed a reply to IBP's supplemental brief, once again disputing all of the company's assertions and claiming that a recent Federal court decision in United States v. Peoples Temple of the Disciples of Christ (see page 266 of Court Procedings and Actions of Vital Interest to the Congress, September 1, 1981 for a discussion of that case) had explicitly rejected many of IBP's contentions. Citing the new case, the brief restated the staff members' arguments that they had standing to invoke Speech or Debate Clause protection and that the Clause applied to a subpoena in a private civil action in which neither the prospective witnesses nor any Member of Congress was a party. The brief also took particular issue with IBP's reliance on the Hutchinson case:

IBP's attempt to equate the preparation of material, and its use at a committee hearing, with the widespread nonlegislative dissemination of allegedly actionable material found in Hutchinson v. Proxmire, 443 U.S. 111 (1979) stretches that decision to the breaking point, and their attempt to "bootstrap" into a wholesale questioning of legislative actions and motivations mocks the important principles underlying the Clause. [Congressional Deponents'

Reply to IBP's Supplemental Brief, May 11, 1981, at 3-4] The staff members also attacked IBP's efforts to characterize the documents sought as unprotected or subject to a separate inquiry:

This Court should reject IBP's attempt to discover" the documents by means of a preliminary hearing ostensibly held to determine whether they are privileged from discovery. This preliminary hearing would force legislators to "defend" themselves in a manner proscribed by the Clause Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (Clause protects not only against consequences of litigation, but the "burden" of defending) and seems particularly inappropri

ate in light of the fact that the subpoena is directed at
committee investigators and describes the documents con-
tained therein “All documents relating in any way to lowa
Beef Processors, Inc. or Hughes A. Bagley.” The pertin-
ency of documents relating to IBP or Mr. Bagley to the
legislative work of these committees can hardly be ques-
tioned at this point. Clearly the acquisition and mainte-
nance of these documents are within the "zone" of legiti-
mate legislative activity into which no questioning will be

condoned. (Id. at 5) On May 15, 1981, IBP filed a reply to the Congressional staff members' brief and its reliance on United States v. Peoples Temple of the Disciples of Christ, supra. The reply claimed the Peoples Temple case was not applicable because: (1) a Congressman, Clement Zablocki, invoked the Speech or Debate Clause in that case, rather than a staff member; (2) the United States was a party in that case and it was not wholly between private parties; and (3) that case did not involve the Hutchinson case holding.

Discovery continued in the case-in-chief during the summer without any ruling by the court on the Congressional staff members' motion to quash.

On September 29, 1981, Magistrate Hodges issued an order granting the Congressional staff members' motion to quash the subpoena in all respects except for two areas: (1) contacts with Federal agencies by committee staff seeking to influence those agencies' actions regarding IBP; and (2) the “post-hearing investigation” into Mr. Bagley's termination by the Dubuque Packing Company.

At the outset, the court specifically rejected IBP's contention that only Members of Congress, not staff members, could invoke the Speech or Debate Clause. The magistrate held that, for the purpose of construing the privilege, "a Congressman and his aide are to be treated as one, hence things done by the aide are privileged to the extent that they would have been privileged if done personally by the Congressmen." [Order, September 29, 1981, at 3] Furthermore, Magistrate Hodges concluded that the record did not support a finding that the privilege had been waived.

Turning next to the question of whether the Speech or Debate Clause applied in a civil action in which no Member of Congress was a party, the court answered affirmatively.

It seems clear that the Speech or Debate Clause historical-
ly arose to preserve the functional independence of the leg-
islature, see generally Legislative Privilege and The Separa-
tion of Powers, 86 Harvard L. Rev. 1113 (1973). In this
regard the Supreme Court has repeatedly stated that the
"central role of the Clause is "to prevent intimidation of
legislators by the Executive and accountability before a
possibly hostile judiciary”, Eastland v. United States Serv-
icemen's Fund, 421 U.S. 491, 502 (1955); Doe v. McMillan,
412, U.S. 306, 311 (1973). Since the dangers of intimidation
and harassment sought to be eliminated by the privilege
are equally present in civil cases and the language of the
clause is so broad it is the view of the court that it should
be applied here. See United States v. Peoples Temple of The

Disciples of Christ, et al., Misc. No. 81-0066 (April 10,
1981); Kaye, Congressional Papers, Judicial Subpoenas and
the Constitution, 24 U.C.L.A. L. Rev. 523, 549 n. 124(1977).

[Id. at 3-4) Finally, addressing the facts of the instant case, the court held that: (1) the preparation of any witness who testified before the committee "clearly falls within the privilege and consequently no judicial inquiry should be permitted” (Id. at 4); (2) the news releases and summaries of testimony were more “intricately intertwined” with the hearings (and thus the legitimate legislative sphere) than the press releases in the Hutchinson case since they were not widely distributed, "but their use was limited to the hearings themselves" (Id. at 5); and (3) no inquiry could be made as to "statements by witnesses to the Committee, information obtained for the hearing or conclusions drawn by the Committee." [Id.]

Magistrate Hodges did conclude however that the Speech or Debate Clause did not bar questioning about staff contacts with other Federal agencies such as the Antitrust Division of the De partment of Justice, the Packers and Stockyards Administration, the Federal Trade Commission, and the Securities and Exchange Commission seeking to influence those agencies' actions regarding IBP. He based this conclusion on the Hutchinson and Brewster

cases.

Moreover, the magistrate ruled that he was unable to see how inquiry into the reason for the Bagley termination could be found to be a protected act. He noted that the “Congressional deponents have made no attempt to show how inquiry into these matters would infringe in any way upon the legislative process.” (Id.]

On October 8, 1981, IBP filed a motion asking the district court to review and overrule Magistrate Hodges' September 29th order to the extent that it granted the Congressional staff members' motion to quash and barred depositions on their contacts with Bagley leading up to his committee testimony or their contacts with the documents Bagley allegedly took from IBP. In an accompanying brief, IBP essentially restated its previous arguments that: (1) under both the House rules and the Gravel decision, staff members did not have standing to assert the Speech or Debate Clause privilege without explicit authorization from a Member of Congress; and (2) the Clause was not applicable to the subpoenas at issue because they were served in a civil diversity suit between private parties for evidence central to the case without any risk of liability to any Member or aide, and without any possibility of interference with on-going Congressional proceedings. Finally, IBP argued that the magistrate had erroneously construed and applied the Hutchinson case because:

First, the newsletter involved in Hutchinson repeated the "essence" of a congressional speech made by Sen. Proxmire. While the Supreme Court noted that the speech when made in Congress was protected by the Clause, it was not protected when reported in the newsletter. Id., at 116 and n. 3, 117, 113. The Proxmire newsletter, thus, if anything had a closer connection and "intertwining" with a legislative act than the materials involved here, which

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