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before an "accommodation" with less disruptive and sig

nificant implications could be achieved. (Id.] Mr. Moss concluded that the separation of powers doctrine and respect for Members of Congress and a coordinate branch demanded that contempt be used in such cases only as a last resort of the judiciary.

On Juanuary 6, 1982, the defendants' brief in support of Mr. Moss' position was lodged with the court. (It was formally filed on January 11, the day the defendants' motion to participate was granted.) While the defendants took no position on Mr. Moss' original Speech or Debate Clause arguments and also did not discuss his procedural objections to the contempt citation under Rule 37, they contended that the material sought by the plaintiffs in their deposition of Mr. Moss was not relevant to the issues of the lawsuit. The defendants summarized their argument as follows:

Plaintiffs' attempt to depose Mr. Moss in order to discover whether defendants were or should have been aware that statements contained in the Moss Report were false, misleading or incomplete does not provide a valid basis for the contempt judgment. The discovery which plaintiffs demand is irrelevant to the issues of the suit because defendants were privileged to reproduce, in a fair and accurate manner, the contents of an official U.S. Congressional Subcommittee Hearing and Report. By demanding Mr. Moss' deposition for the purpose of discovering defendants' efforts to verify the truth of the contents of a Congressional report, plaintiffs directly attack defendants' privilege to report official proceedings. [Defendants' Memorandum of

Points and Authorities, January 11, 1982, at 6] Asserting that their republication of reports from the Moss hearings and the committee report was privileged under both the common law of the state of Washington and the First Amendment, the defendants pointed out that:

If the press could not report such proceedings as the Moss Subcommittee Hearings and Report without liability for alleged inaccuracies in the government's investigations, the public would be denied much of its access to the results of official proceedings. The press would have to devote its own resources to duplicate Congress' efforts in order to protect itself from liability for defamatory statements before it could safely report governmental proceedings. The cost of reporting on complicated and controversial issues of governmental debate would be enormous. The public would be the loser.

It is to prevent a chilling effect on the reporting of official proceedings that the law has long recognized a privilege allowing the press to publish accounts of official proceedings even when those accounts may contain defamatory statements so long as the report was fair and accurate and was not motivated solely for the purpose of damaging the plaintiff. (Id. at 11-12]

This privilege to report official proceedings, the defendants concluded, eliminated from the case any issue concerning their knowledge of, or their efforts to confirm, the truth of the contents of the Moss report, and likewise made Mr. Moss' testimony immaterial. (The defendants added that, in any event, they did not believe the report was inaccurate.)

On February 11, 1982, the plaintiffs filed their brief, arguing that the district court's contempt sanction was properly applied in this case. They contended, first, that Mr. Moss' refusal to provide documents or answer questions at his deposition because of the claimed applicability of the Speech or Debate Clause was unjustified. Noting that the issue had been exhaustively briefed and argued before the trial court, and that Mr. Moss' attorney had stated that he would continue to refuse to answer any questions at his deposition, the plaintiffs asserted that "it was not necessary for the Court to review each specific question to determine whether the ... Clause would apply.” [Brief of Appellees, February 11, 1982, at 8]

Second, the plaintiffs claimed, Mr. Moss' reliance on the rules of the House was not an adequate excuse for his failure to obey a judicial subpoena. The plaintiffs maintained that discovery proce dures were not governed by the House rules, and that, in addition, H.R. Rule L(50), by its own terms, did not apply to Mr. Moss because he was no longer a Member of Congress. “Any special internal rules of the House . . . are inapplicable because Mr. Moss was not a member of the Congress on the date he was served with the subpoena, when he appeared at the deposition, or on January 23, 1979, the date when he carried on a telephonic interview with Dan Seligman." [Id at 8-9)

Third, the plaintiffs argued, Mr. Moss' contention that they should have moved under Federal Rule 37 for an order to compel before seeking contempt was without merit. As they had in the district court, the plaintiffs pointed out that a valid order had been entered on May 6, 1981, and a trial court "need not approve each question once it has previously entered an Order defining in detail the permitted scope of questioning." [Id. at 14]

Fourth, the plaintiffs claimed, Mr. Moss was given a meaningfu opportunity to demonstrate "adequate excuse" for disobeying the subpoena. Again they noted that the Speech or Debate Clause issue was fully briefed and argued prior to the May 6th order and tha the contempt citation came only after months of litigation, during which time Mr. Moss had "more than ample opportunity" [Id, a 16] to demonstrate adquate excuse for noncompliance. The plain tiffs asserted that:

In summary, the fact that counsel for Mr. Moss might have raised other objections is not important here for he did have the opportunity to raise such defenses during the deposition, in his response to the Order to Show Cause and at the contempt hearing. In his response to the Order to Show Cause, he did not file any affidavit. In his response, he raised four blanket objections: privilege, irrelevance, legal impossibility, and bad faith . . . At the contempt hearing, Mr. Moss again referred to these defenses, ... but did not request or demand, at any time, the opportunity to

present any evidence to support his objections. If he pos-
sessed evidence of bad faith on the part of Fremont, he

was most quiet or secretive about it. (Id. at 17] Finally, the plaintiffs argued, the defendants' claimed republication privilege was an issue for the trial court and did not constitute “adequate excuse" for disobedience of the subpoena. They concluded:

The Newspaper's argument is of no assistance to Mr. Moss because of three factors: (1) There is nothing in this record or anywhere to support the premise that Fremont's libel allegations are based on any activity of the Newspaper with respect to The Moss Report or the hearings; (2) The substantial portion of the deposition of Mr. Moss did not involve The Moss Report or the hearings transcript; and (3) The questions which did refer to that report and hearings are universally composed of phraseology such as:

“Mr. Moss, during the course of your telephone
conversation on January 23, 1979, did Mr. Selig-
man ask you about the practice of .. (Exc. of

Record 115 (deposition page 30, lines 15–18)).
This type of question was permitted by the May 6, 1981
Order; legal counsel for the Newspaper acknowledged so
during the deposition. ... The standard of care of report-
ing by Defendant Seligman is a major issue in the libel
case. Certainly, the Newspaper cannot argue that the
questions actually asked of Mr. Moss concerning the
Report or the hearings are irrelevant since the nature of
the questions is such that answers to them could disclose
the "bad faith" motive discussed by the Newspaper in

their opening brief. (Id. at 19-20] On March 1, 1982, Mr. Moss filed a reply brief which took issue with a number of the specific points raised by the plaintiffs. In particular, the brief addressed the question of Mr. Moss' status as a former Member of Congress:

It is obvious that former Members may raise the speech or debate privilege concerning acts performed while Members or arising from their performance of legislative acts, whatever their status at the time of assertion, and even the District Court recognized this in the original hearings on Chairman Moss' motion to quash. See Brief of MovantAppellant at 32, and United States v. Eilberg, 465 F.Supp. 1080 (E.D. Pa. 1979) (former Member's speech or debate claims concerning statement to Committee in prior session sustained), United States v. Helstoski, 442 U.S. 477 (1979) (former Member, who had appeared before grand juries on 10 prior occasions to testify on his practices in introducing private bills, raised speech or debate clause as bar to introduction of his legislative acts at trial; claim of privilege sustained). And in this connection, H.R. Rule L (50) has been the procedure by which the House considers subpoenas to former Members and employees for testimony or

documents arguably within the clause. See, e.g., 126 Cong.
Rec. H12139 (daily ed. Dec. 5, 1980) (asserting H.R. Rule L
(50) procedures with respect to a former employee of Sub-
committee on Oversight and Investigation.) Id. at H12138
(daily ed. Dec. 5, 1980) (same, former employee of Small
Business Committee). [Reply Brief of Movant-Appellant,

Chairman Moss, March 1, 1982, at 14) Status-The case, as it relates to Mr. Moss' deposition and contempt citation, is pending in the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of California. Tavoulareas v. Washington Post

Civil Action Nos. 80-3032 and 80-2387 (D.D.C.) This action arose after The Washington Post allegedly published two defamatory articles (on November 30 and December 1, 1979) about certain business transactions involving William Tavoulareas, the president of Mobil Oil Corporation, and his son, Peter Tavoulareas. On November 25, 1980, William and Peter Tavoulareas filed suit in the U.S. District Court for the District of Columbia (Civil Action No. 80-3032) against the Post and several of the newspaper's officials and reporters. In sum, the complaint alleged that the articles were libelous in that they suggested that the elder Tavoulareas had used his position at Mobil to set up his son as a partner in a London-based shipping firm, Atlas Maritime Company, and further to assure the success of that venture. According to the plaintiffs, the articles were false, and were published by the defendants either knowing they were false or in reckless disregard of their truth or falsity.

The same plaintiffs had previously filed another complaint alleging libel and slander in the U.S. District Court for the District of Columbia against Philip Piro, the former son-in-law of William Ta. voulareas. This suit, filed on September 19, 1980 (Civil Action No. 80-2387], alleged that the defendant made statements, similar to those reported in the Post, to representatives of the Subcomittee on Energy and Power of the U.S. House of Representatives ("Subcommittee"), the Securities and Exchange Commission ("SEC”), and the Post.

A third suit was filed by the plaintiffs in the same court on November 5, 1980 against George Comnas, an officer of Atlas during the early period of Peter Tavoulareas' partnership in the venture. [Civil Action No. 80-2841] The complaint alleged that the defendant also made libelous and slanderous statements about the plaintiffs' business arrangements to the Subcommittee, the SEC, and the Post.

The various complaints sought compensatory damages in the amount of $40 million from the Post defendants, and $10 million each from defendants Piro and Comnas. The plaintiffs also sought exemplary damages of $10 million from each of the defendants.

On February 9, 1981, U.S. District Court Judge Oliver Gasch issued an order consolidating the actions against the Post and Mr. Piro. [Nos. 80-3032 and 80-2387, respectively) The action against Mr. Comnas was not consolidated.

On February 19, 1981, the plaintiffs in the consolidated cases served subpoenas and deposition notices on Subcommittee staff members Michael Barrett, David Schooler and Peter D. H. Stockton. The discovery sought concerned a letter sent by Subcommittee Chairman John Dingell to the Chairman of the SEC regarding possible evidence of violations of Federal security laws by the plaintiffs, outlined in two memoranda prepared by Mssrs. Stockton and Schooler. The plaintiffs also wished to question the Congressional deponents about their contacts with the Post reporter who wrote the allegedly libelous articles which gave rise to the underlying litigation.

On March 17, 1981, the staff members filed a motion to quash the subpoenas, arguing that they: (1) contravened the Speech or Debate Clause 1 of the U.S. Constitution; (2) sought to interfere in an ongoing legislative investigation by questioning committee investigators about their contacts; (3) failed to make any showing that justified such an intrusion with the internal processes of a coordinate branch of government; and (4) did not seek testimony which was material and relevant under applicable authorities.

In an accompanying memorandum, the staff members elaborated on their Speech or Debate Clause argument, noting, first, that the Clause applied to aides as well as Members of Congress and, second, that it protected the investigative as well as the deliberative function of Congress:

As this Court has recognized many times, for purposes of the Speech or Debate Clause protection against the "questioning,” in either a civil or criminal action, of acts within the legislative sphere, “congressional aides and Congressmen for whom they work are treated as one'” Peroff v. Manuel, 421 F. Supp. 570, 574 (D.D.C. 1976). It is equally clear, as recognized by that case, that the gathering of such information (materials relating to an investigation), whether in preparation for a subpoena, an investigatory hearing or a legislative report seems an integral part of Congress' investigative function and entitled to the same protection as the use of that information within Congress." Peroff v. Manuel, supra at 574 n. 9, quoting McSurely v. McClellan, 521 F.2d 1024, 1037 (D.C. Cir. 1975), aff'd by an equally divided court, 553 F.2d 1270 (D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted, 438 U.S. 189 (1978). Permitting Plaintiff to probe the "contacts”, if any, between the committee staff and third parties will necessarily entail not only a breach of the absolute bar to questioning legislative acts-in this case information gathering—but also has the likelihood of interfering in an ongoing investigation currently being conducted by the Subcommittee. Eastland, supra at 511, Gravel v. United States, 408 U.S. 606 (1972) (testimonial privilege applied to Senator and his aides). Accord, In Re Grand Jury Investigation, 587 F.2d 589, 595, (3d Cir. 1978) (telephone toll records evi

The Speech or Dabate 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]

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