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dencing calls placed by Member or his staff in gathering
information from outsiders privileged under Speech or
Debate Clause). [Congressional Deponents Memorandum of
Points and Authorities in Support of Motion to Quash,

March 17, 1981, at 4-5] Further, the staff members argued, the motivation for the investigation conducted by the Subcommittee, and the methods employed in that investigation were beyond the reach of judicially compelled discovery under the Clause.

Finally, the Congressional deponents asserted that the plaintiffs had failed to make any showing that the staff members were the "source" for the Post articles. The staff members rejected the theory that simply because the plaintiffs would have to demonstrate to the court that they had exhausted all alternative means to learn the source of the information before the reporter could be compelled to answer such questions, that the plaintiffs must be allowed to question the committee staff. “[T]he invocation of confidentiality by the Washington Post, however appropriate, does not entitle Plaintiffs to conduct a fishing expedition in congressional waters, particularly in view of the doctrine of separation of powers

as well as the presumptive privilege of confidentiality [Id. at 3-4]

On April 6, 1981, the plaintiffs filed a memorandum in opposition to the motion to quash, contending that the information sought from the Congressional deponents-relating to the identity of the defendants' sources-was critical to the action (specifically with respect to proving malice or reckless disregard for the truth). The theory of the memorandum was that the Subcommittee investigation was not a formal investigation at all but a "private", "informal” and “impromptu” undertaking "prompted by Post reporters with the goal of disseminating this information in exclusive Post stories.” [Plaintiffs' Memorandum of Points and Authorities in Opposition to Congressional Deponents' Motion to Quash, April 6, 1981, at 11] Because it was not a formal investigation by the Subcommittee, and there was “no evidence that other Members of Congress on the ... Subcommittee knew of this inquiry” [Id. at 9), the plaintiffs maintained, it was outside the ambit of any legislative privilege. They argued:

The true nature of the Subcommittee's inquiry-dissemination of information-is beyond the protections provided for Congress in the Constitution. The Supreme Court has unequivocally stated that dissemination of information to persons outside Congress is not an activity protected by legislative privilege. See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979); Doe v. McMillan, 412 U.S. 306, 317 (1973); Gravel v. United States, 408 U.S. 606, 625 (1972).

Relying on this precedent, the Court of Appeals for the District of Columbia Circuit has stated in a case involving a civil suit against Congressional staffers that: [T]he dissemination of information outside Congress is not a protected legislative act and enjoys no special constitutional immunity.” McSurely v. McClellan, 521 F.2d 1024, 1040 (D.C. Cir. 1975) affd en banc by an equally divided court,

553 F.2d 1277 (D.C. Cir. 1976) cert. dismissed as improvi.
dently granted, 438 U.S. 189 (1978). This Court itself recog.
nized the dissemination exception in Peroff v. Manuel, 421
F. Supp. 570 (D.D.C. 1976), when it noted that an alleged
disclosure of a secret witness' true identity to a credit col-
lector, would, if true, be beyond the scope of the defend-
ant's immunity as a Congressional investigator. Id. at 575.

(Id. at 12] The plaintiffs insisted that it was the motives and activities of the Post defendants, not the Congressional deponents, in which they were interested, and they stated that they were "not seeking to harrass the Subcommittee's staff or impede any ongoing investigation.” [Id. at 13] In any event, the plaintiffs emphasized, precedent made it clear that any legislative privilege was not absolute in scope, particularly where the dissemination of materials outside Congress was involved. For this proposition they cited, among other cases, Hutchinson v. Proxmire, 443 U.S. 111 (1979) and Benford v. American Broadcasting Companies, Inc., 502 F. Supp. 1148 (D.Md. 1980). (See page 204 of this report for a discussion of the latter case.)

On April 10, 1981, the Congressional staff members filed a reply memorandum characterizing the plaintiffs arguments as a "blatant and totally inappropriate attempt to 'question' the procedures and bona fides of a legislative investigation-exactly the evil proscribed by the Speech or Debate Clause." (Congressional Deponents' Reply Memorandum, April 10, 1981, at 1]

The staff members attacked the plaintiffs' contentions on two fronts. First, they asserted, the case law demonstrated that any actions which are facially or apparently legislative in nature within the protection of the Speech or Debate Clause. (Id. at 2] Second, they maintained, courts "will not tolerate inquiry into legislative motives, even if they are alleged to be unworthy." [Id.] The staff members noted in particular that "informal” inquiries "are part and parcel of the legislative process and are an integral part of the deliberative and communicative process' by which Members participate in the business of legislating." [Id. at 3] Finally, the plaintiffs' analysis of the "dissemination exception" to legislative privilege was dismissed by the staff members as premature and unnecessary since no showing had been made that the staff members had in fact disseminated any information.

On May 11, 1981, the motion of the Congressional deponents to quash the subpoenas was argued and taken under advisement by Judge Gasch.

On July 20, 1981, the Congressional staff members filed a motion to intervene in the consolidated cases for the limited purpose of staying the noticed deposition of Mr. Comnas pending the disposition of their motion to quash. Alternatively, they sought to intervene to secure a protective order to prevent the mootness of the pending motion to quash through discovery by indirect means (i.e., the Comnas deposition) of the substance of the Subcommittee's investigation. Although the motion to intervene was opposed by the plaintiffs in a memorandum filed on July 23, Judge Gasch granted it after a hearing the following day.

are

On July 24, 1981, having been permitted to intervene, the staff members filed their motion to stay the Comnas deposition or alternatively for a protective order. (The motion had actually been lodged with the court on July 20, simultaneously with the motion to intervene.) In a supporting memorandum, the Congressional de ponents pointed out that Mr. Comnas had been interviewed by them during the course of the Subcommittee investigation, and that such interviews of witnesses were within the protected legislative sphere. The Speech or Debate Clause, they argued, barred questioning, directed to third parties, into the motives or performance of legislative acts. Asserting that the plaintiffs were attempting to circumvent or moot their claims of legislative privilege, the staff members urged the court to grant the stay or enter a protective order precluding the questioning of Mr. Comnas concerning his communications with the Congressional interviewers.

On July 23, 1981, the plaintiffs filed memorandum in opposition to the motion for a stay, arguing that it should be denied for two reasons: (1) no legislative act had occurred about which Mr. Comnas could be questioned; and (2) the extension of legislative privilege to a non-congressional source would contravene established legal principles.

On the first point the plaintiffs noted that the substance of the Congressional staff members' interview with Mr. Comnas was contained in a memorandum which had been disseminated outside Congress (when it was forwarded to the SEC by Rep. Dingell and subsequently released to the Post). Under the doctrine of Hutchinson v. Proxmire, supra, the plaintiffs argued, the dissemination of material outside Congress is not a legislative act and is not protected by legislative privilege. Further, they asserted, the interview itself was not a legislative act, particularly since the Subcommittee had not authorized any investigation.

Whatever intent or purpose the staffers had when interviewing George Comnas, the interview never resulted in legislation or in a legislative act. Legislative privilege is limited. It only "precludes any showing of how (a legislator) acted, voted or decided." Id. Here there was no legislative action, no vote to commence an investigation. The Aides' interview of Comnas was not related to any “legislative act.”

Moreover, Congressional Aides have continued to make bald assertions that they were engaged in a "valid Subcommittee investigation.” Yet they have offered no evidence of any Congressional authorization for their activities. They have not even explained how it related to any legislative business. Plaintiffs, on the other hand, have presented considerable evidence regarding the Post's relationship to the Aides' activity. There is no documentary evidence of any official actions by either the Dingell Sub committee on Energy and Power or the Subcommittee on Oversight and Investigations. There is no evidence that any subcommittee approved any type of investigation, formal or informal, into Mobil-Samarco-Atlas activities. [Plaintiffs' Memorandum ... In Opposition to Congres

sional Deponents' Motion for a Stay . . . , July 23, 1981, at

5-6 (footnotes omitted)] On the second point, the plaintiffs argued that the logical extension of granting a legislative privilege to a non-congressional source would be to insulate wrongful or tortious conduct from judicial scrutiny "merely by communicating it to the Congress or congressional staffers." (Id. at 7] This would, the plaintiffs insisted, undermine judicial authority to resolve disputes among private parties.

On September 10, 1981, Judge Gasch issued an order which, inter alia, denied the Congressional deponents' motion to quash the subpoenas, set forth certain guidelines regarding the conduct of the depositions, and granted the Congressional deponents' motion for a protective order with respect to the Comnas deposition.

In a memorandum handed down with the order, Judge Gasch explained each of his directives. (Tavoulareas v. Piro and The Washington Post Co., 93 F.R.D. 11 (D.D.C. 1981)] Turning first to the staff members' motion to quash, the judge found that the Speech or Debate Clause: (1) confers on legislators immunity from judicial process requiring them to answer questions relating to the performance of their legislative duties; (2) applies to Congressional staff as well as to Members; (3) is to be construed "broadly"; and (4) protects, as within the legitimate legislative sphere, investigative information gathering efforts. Nonetheless, Judge Gasch ruled that "a consistent line of authority" had held that "the act of disseminating information outside of Congress is beyond the legitimate legislative sphere and therefore outside of the protections afforded by the speech or debate clause." (93 F.R.D. at 18] As a consequence, he ordered that the motion to quash be denied "to the extent that plaintiffs seek testimony from the Congressional deponents relating to the dissemination of the so-called Dingell documents, and for that matter any other information, to the Post reporters.” (Id. at 18 (emphasis in original)]

Judge Gasch rejected, however, the plaintiffs' suggestion that the investigation at issue was not covered by the Speech or Debate Clause privilege because it was merely a sham undertaken at the urging of the Post defendants. Inquiry into the motives of the staff members in conducting the investigation was barred by the Clause, he ruled:

As previously noted, investigations by congressional aides
for the purpose of gathering information on a subject
which appears on its face to be of legitimate legislative in-
terest are protected by the privilege. Although plaintiffs
have repeatedly suggested that the subject investigation
was not actually aimed at uncovering information of valid
legislative interest but rather was undertaken, at the
urging of the Post defendants, as a means of lending legiti-
macy to the stories in question, it is clear that such asser-
tions, even if true, do not pierce the legislative privilege.

Thus, it matters not that the true purpose behind
a committee's use of its investigative power is to
ridicule, harass, or punish a private citizen. So

long as the particular investigative activity does
not trench upon Executive or judicial preroga-
tives-so long as it remains facially legislative in
character-the committee, and its employees, are

protected.
McSurely v. McClellan, 521 F.2d at 1038. Thus, inquiry
into what motivated the Congressional deponents to inves-
tigate these matters is not a permissible subject of exami-

nation. (Id. at 18-19] Judge Gasch found “similarly unavailing” the plaintiffs' arguments that an "informal” investigation was not subject to Speech or Debate Clause protection. For this holding, he cited in particular McSurely v. McClellan, 521 F.2d 1024, 1037 (D.C. Cir. 1975). (See page 193 of this report for a discussion of that case.)

With respect to the question of whether and to what extent the plaintiffs could inquire into communications by the Post reporters, either directly or indirectly, with the Congressional staff, Judge Gasch held that "while inquiry into the motivation behind the Congressional deponents' investigation is foreclosed by the speech or debate privilege, inquiry into the apparent motivation of the Post reporters in bringing the matter to the staff's attention, if in fact they did, would not be similarly precluded." [Id. at 19 (emphasis in original)] Furthermore, he found, insofar as these possible contacts could be construed as a solicitation for the dissemination of information by congressional staff, they cannot be said to implicate valid legislative activities since ... dissemination does not fall within that characterization.[Id. (emphasis in original)]

Finally, focusing on the Congressional deponents' motion for a protective order with respect to the Comnas deposition, Judge Gasch concluded that the plaintiffs' objections were without merit and therefore granted the order. The judge first dismissed the plaintiffs' argument that no legislative act had occurred, holding that the Speech or Debate privilege did apply to the matters in question. Next he ruled that the "plaintiffs' view that the speech o debate clause does not extend to questioning of a third party other than a legislator or his aides is simply a misstatement of the lau. [Id. at 23 (emphasis in original)] In fact, said Judge Gasch, the "in escapable conclusion” was that the Clause prohibits the use of ju dicial process to inquire of a third party about the legislative acts o a legislator or his aides.[Id. at 24 (emphasis in original)]

On November 4, 1981, Mr. Comnas' deposition was held durin which counsel for the Clerk of the House objected to certain ques tions propounded to him (i.e., Mr. Comnas) because they purported ly probed the conduct of a Congressional investigation in violatio of the Speech or Debate Clause and Judge Gasch's September 10t memorandum. On November 5, counsel for both the Clerk and th plaintiffs wrote to Judge Gasch concerning the deposition and th merits of their respective positions. While the plaintiffs contende that the questions at issue related only to the dissemination of in formation from the Subcommittee, the Clerk's counsel noted tha

Simply put, we did not object to any questions concerning disseminations from the Congress to an entity outside

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