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were a release issued to the press before Bagley testified
Second, in any event, Hutchinson did not hold that the protection of the Clause for news releases and other materials issued to the press or public depended on how "intricately intertwined" they were with legislative hearings. To the contrary, the Supreme Court made it clear beyond doubt that such materials are not protected by the Clause at all. Id., at 133.
Third, the Magistrate's Order makes a factual error when it states that the materials here in question were not "widely distributed” but were “limited to the hearings themselves.” It is undisputed that the media were heavily in attendance at the hearings during Bagley's testimony, and Rep. Smith's staff distributed the materials directly to the media. [Brief in Support of IBP's Motion For Review ..., October 8, 1981, at 4-5] On October 19, 1981, the Congressional staff members filed an opposition to IBP's motion for review of the magistrate's order. As they had previously, the staff members
disputed IBP's assertions as to standing (citing Gravel and House Rule 50, and noting that no Member had repudiated the staff aides' Speech or Debate claims), the applicability of the Clause to civil discovery (citing the Peoples Temple case), and the applicability of Hutchinson v. Proxmire. On the last issue, the staff members argued that the magistrate's finding that the limited distribution of the hearing materials distinguished the case from Hutchinson was correct. They pointed out:
First, and most importantly, the materials distributed were not reflective "of the views and will of a single Member” Hutchinson v. Proxmire, 443 U.S. at 133 conducting a publicity campaign, but rather aided the committee's conduct of the hearing. In both Gravel, supra, Doe v. McMillan, 412 U.S. 306 (1973) and United States v. Brewster, 408 Ú.S. 501 (1972), the Court preserved the inviolability of the committee hearing process by applying the Clause to forbid inquiry into how Members “spoke, how (they] debated, how (they! voted, or anything (they] did . . . in the Committee.” Brewster, supra at 526.
While the Magistrate did not rely on it, a recent case in this Circuit affirms the correctness of the decision. In Greeen v. DeCamp, 612 F.2d 368 (8th Cir. 1980), a state law enforcement officer brought suit against eight state senators charging, inter alia, that their release to the press of a committee report critical of the plaintiff's discharge of his duties in connection with a murder constituted a deprivation of his constitutional rights. Plaintiff contended that releasing the report to the public and the press was outside the legislative immunity. The court of appeals rejected the claim and held that, "on the basis of Doe v. McMillan, we conclude that mere release 'to news reporting and publishing agencies' of the Fitzgibbon report was a legiti
mate legislative activity.” 612 F.2d at 372. The court spe-
4 The Bagley testimony, together with the staff interviews and summaries, were
Review, October 19, 1981, at 4-5] On October 29, 1981, the Congressional staff members filed a motion asking the magistrate to reconsider his earlier order to the extent that it allowed the depositions to go forward with respect to the “post-hearing investigation” into Mr. Bagley's termination by the Dubuque Packing Company. Since the magistrate had held that questioning was permissible on the subject solely because the Congressional aides had made no showing as to how such an inquiry would infringe on the legislative process, the staff members sought reconsideration for the purpose of making such a showing. They argued that there were three separate reasons which supported the conclusion that the committee's inquiry into Mr. Bagley's termination was directly related to the legislative process and hence a protected legislative activity. First, the staff members maintained, the investigation of possible reprisals against committee witnesses was "in aid of the committee's ability to protect the integrity and sanctity of its processes and is ancillary to the fulfillment of the investigative function.” [Brief in Support of Congressional Deponents Motion To Magistrate for Reconsideration, October 29, 1981, at 1-2) Second, they contended, the facts and circumstances surrounding the termination were relevant to the committee's inquiry regarding possible anticompetitive practices in the meat industry. And finally, the staff members noted, the investigation of the circumstances surrounding Mr. Bagley's termination aided the committee in evaluating his testimony and its possible use as a basis for remedial legislation.
On January 4, 1982, Magistrate Hodges issued a one-sentence order denying the Congressional staff members' motion to reconsider.
Over the next two months, discovery continued in the case-inchief.
Status- The case is pending in the U.S. District Court for the Northern District of Iowa.
The complete text of the September 29, 1981 order of the district court magistrate is printed in the "Decisions” section of this report at page 548. Common Cause v. Bolger
[See page 237.)
Fremont Energy Corporation v. Seattle Post-Intelligencer
Cir.) On February 12, 1981, during the course of a libel suit filed by the Fremont Energy Corporation against the Seattle Post-Intelligencer, the Hearst Corporation and others in the U.S. District Court for the Western District of Washington (Civil Action No. C79-443V), the plaintiffs, utilizing foreign deposition procedures, served a subpoena duces tecum on former Congressman John E. Moss. The subpoena called for Mr. Moss, who had been Chairman of the Subcommittee on Oversight and Investigations ("Subcommittee") of the Committee on Interstate and Foreign Commerce of the U.S. House of Representatives, to appear for a deposition in Sacramento, California and to bring with him "any and all reports, re
cords, files, notes, memoranda, correspondence or other documents y pertaining to certain remarks and comments more specifically de
scribed in attachment A..." to the subpoena. The attachment identified the following items:
(1) Mr. Moss' remarks made to Dan Seligman [a reporter) on or about January 23, 1979, during a telephone interview of Mr. Moss.
(2) The "Moss Report," formally known as the Report on Uranium Lode Mining Claims on Federal Lands, dated December 1978, issued by the Subcommittee on Oversight and Investigations.
(3) The Subcommittee hearings which occurred in October, 1977, on the subject matter described in the Moss Report.
(4) Comments made by Ben Smethurst (a subcommittee staff member] to Dan Seligman during January-March 1979 about Fremont Energy Corporation, the Moss Report, or the related subcommittee hearings.
(5) The procedures and rules of the subcommittee and of Congress during the course of the subcommittee hearings. On March 5, 1981, Mr. Moss filed a motion to quash the subpoena in the U.S. District Court for the Eastern District of California. In a memorandum accompanying the motion, Mr. Moss argued that the subpoena violated the Speech or Debate Clause of the U.S. Constitution by seeking to compel testimony surrounding a Member of Congress' legislative acts. According to the memorandum, the Subcommittee on Oversight and Investigations which then-Representative Moss chaired, had jurisdiction over various aspects of nuclear energy, and pursuant to this authority was conducting a legislative inquiry into an international uranium cartel. It was as part of this investigation that certain activities of the Fremont Energy Corporation were reviewed and the subpoenaed subcommittee report prepared and issued.
Mr. Moss asserted that since these activities were, prima facie, within the legitimate legislative sphere, the privilege accorded
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, 36, čl.1)
under the Speech or Debate Clause was absolute, and any use of the legislative acts as evidence in a judicial proceeding constituted prohibited questioning. He noted that:
To provide the protection to the legislative branch intend-
1981, at 6-7) The memorandum also maintained that the Clause applied to civil suits in which the Member was not named as a party defendant.
On March 27, 1981, the plaintiffs filed a response, opposing Mr. Moss' motion to quash the subpoena. The opposition was premised on two arguments: (1) that the Speech or Debate Clause did not protect Mr. Moss from testifying because the focus of the deposition consisted of remarks made by Mr. Moss to a reporter after he had relinquished his seat in Congress; and (2) that the Clause did not protect a former Congressman from testifying regarding legislative acts in a civil deposition proceeding in which he was not a party.
Noting that the allegedly libelous articles that were published in the defendants' newspaper were based in part on the requested subcommittee report (the "Moss Report"), the plaintiffs claimed the subpoena was primarily an attempt to discover evidence concerning the efforts of Dan Seligman (the reporter who wrote the story) to verify the truth of the statements in the report prior to relying on them for his articles. The central subject of the subpoena, according to the plaintiffs, was Mr. Moss' telephone conversations (and those of subcommittee staff member Ben Smethurst) with reporter Seligman. In the plaintiffs' view, these telephone conversations did not constitute protected legislative activities under the authority of Hutchinson v. Proxmire, 443 U.S. 111 (1979), which upheld the right to maintain a defamation action against a Senator for statements in press releases and newsletters. (See page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) The plaintiffs explained:
Thus, even if former Representative Moss were still a member of Congress, inquiry by subpoena into conversations, such as those described in paragraphs 1 and 4 of Attachment A, would not be immunized by the Speech or Debate clause. The testimonial privilege afforded by the Speech or Debate clause is certainly no more extensive than the immunity provided by it against claims of defamation. Here the remarks were made after Mr. Moss had left Congress. There can be no question but that the contents of those communications were not protected by the Speech or Debate clause against either a subpoena or an allegation of defamation. A sitting Congressman is not protected from an allegation of defamation or a subpoena with respect to quotations from or dissemination of documents, even if such documents are official Congressional materials published by the Government. A fortiori, the former Congressman's dissemination or use of any materials published by the Congress or anyone else, or any conversations he may have had with representatives of the press or anyone else, are not protected from testimonial inquiry or allegations of defamation by the Speech or Debate clause. Memorandum of Points and Authorities in Opposition To Mr. Moss' Motion to Quash, March 27, 1981, at 6
7] For the same reasons, the plaintiffs contended that no Speech or Debate Clause privilege attached to the public documents sought in the subpoena. Even if it did attach with respect to the subcommittee hearings, they asserted, it would be inapplicable "to the extent Mr. Moss chose to discuss or allude to his motivations, thoughts, or activities with respect to those hearings, in conversations with members of the public after he was no longer a Member of Congress." [Id. at 7]
Finally, the plaintiffs argued that although the Speech or Debate Clause clearly applied as a testimonial privilege and substantive defense in both civil and criminal actions, it did not bar testimony by a former Member in a civil deposition proceeding in which he was not a party.
On April 1, 1981, Mr. Moss filed a reply memorandum in which he argued that his statements to a reporter did not serve to waive his right to Speech or Debate Clause protection concerning his motivations, thoughts, and activities with respect to the relevant hearings. For this proposition, he cited United States v. Helstoski, 442 U.S. 477 (1979). (See page 71 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) Mr. Moss also noted that his status as a former Member did not affect his ability to assert the privileges afforded by the Clause since Mr. Helstoski had also been a former Member at the time the Court ruled in his favor on his claim of privilege.
Moreover, Mr. Moss said, the plaintiffs' subpoena was not in fact limited to telephone conversations, but sought to question the performance of legislative acts themselves. Mr. Moss pointed out that the plaintiffs' own pleadings sought to establish that the state