documents at issue was barred by the Speech or Debate Clause3 and a claim that release was also prohibited under the Publication Clause, the plaintiff contended that the Clerk was seeking "to go beyond the scope of issues available to intervenors." [Id. at 3] In his view, an intervenor could only be admitted to a proceeding with respect to pending issues, and could not enlarge the issues or change the nature of the action.

Furthermore, the plaintiff maintained, the Clerk's proposed intervention was not "timely" because he had waited nearly eight months before filing his motion despite the fact that he "knew all along that his constitutional claims . . . had not been raised." [Id. at 4] Finally, the plaintiff asserted, allowing the Clerk to intervene at that point would severely prejudice him because it would further delay the expected release of the requested documents.

On February 2, 1982, the defendant FBI and Department of Justice filed a response to the Clerk's motion to intervene, stating that they had no objection to his permissive intervention although they believed he had no right to intervene under Rule 24(a).

On February 4, 1982, the Clerk's motion was argued and taken under advisement. On February 8, in a brief memorandum order. Judge Green granted the motion to intervene, finding it proper as a matter of right. She held that:

[T]he Clerk has applied timely, after the defendants altered its position with respect to raising legislative privileges; disposition of this action in the Clerk's absence may impair or impede his ability to protect the interests of the House of Representatives; and the Clerk's interests are not adequately represented by the present parties. [Memorandum Order, February 8, 1982, at 1]

Also on February 8, the Clerk formally filed his answer to the complaint, asserting as defenses that: (1) the action was barred by the Speech or Debate Clause; (2) the action was barred by the Publication Clause; and (3) the complaint failed to state a claim upon which relief could be granted.

On February 19, 1982, the plaintiff filed his initial interrogatories and requests for admissions on the Clerk.

Status-The case is pending in the U.S. District Court for the District of Columbia.

Allen v. Department of Defense

Civil Action No. 81-2543 (D.D.C.)

On October 20, 1981, Mark Allen, a private citizen researching the work of the House Select Committee on Assassinations ("Committee") filed suit in the U.S. District Court for the District of Columbia under the Freedom of Information Act (5 U.S.C. §§ 552, et seq.) ("FOIA") against the Department of Defense, the Central Intelligence Agency ("CIA"), and Edmund L. Henshaw, Jr., the Clerk

3 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, § 6, cl. 1]

The Publication Clause of the U.S. Constitution provides that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require secrecy. . ." [art. I, § 5, cl. 3]

of the U.S. House of Representatives. The plaintiff sought copies of "all correspondence or any records of any communications" between the Defense Intelligence Agency ("DIA"), a component of the Defense Department, and the Committee, and the CIA and the Committee, relating to the Committee's investigation into the assassination of President John F. Kennedy. [Complaint, October 20, 1981, s 7, 19] The plaintiff also requested "all internal agency memoranda, all inter-agency memoranda, and any records of telephone conversations" relating to the investigation in the files of the DIA or CIA. [Id., ¶s 13, 23]

The plaintiff included the Clerk of the House as a defendant in the action on the ground that "as custodian of Congressional records, he has asserted that Congress retains control over records sought by Allen that are in possession of DOD and the CIA." [Id., [5]

On December 4, 1981, the Clerk filed a motion to dismiss the complaint on the grounds that the court lacked jurisdiction over the subject matter and personal jurisdiction over him, and because he complaint failed to state a claim on which relief could be grantd. In an accompanying memorandum, the General Counsel to the Clerk summarized his position as follows:

It is the Clerk's position in this case that he cannot be named as a defendant in an action under the Freedom of Information Act, because the statute does not waive the sovereign immunity of the Congress as a branch of government, but rather specifically exempts the Congress from the Act. 5 U.S.C. § 551(1)(A) (1976). It is the further position of the Clerk that he is not subject to suit simply on the basis of his assertion of the Congressional exemption since the Clerk's performance of archival and custodial responsibilities, in connection with which the claim is asserted, delegated to him by House rules, are legislative in nature, and therefore immune under the Speech or Debate Clause, U.S. Const., art. I, § 6, cl. 1. [Memorandum of Points and Authorities in Support of Motion to Dismiss, December 4, 1981, at 2-3]

First addressing the Congressional exemption, the General Counel argued that the Clerk was immune from suit under the FOIA ecause he was an officer of Congress, a statutorily exempt (under U.S.C. § 551(1)(A)) entity. He noted that the Congressional exempon would be rendered meaningless "if it could be circumvented by mply naming officers, employees or functionaries of the legislave branch." [Id. at 3, n. 3]

To preserve the express statutory exemption for Congress under he FOIA, the General Counsel asserted that the Clerk had to be ismissed as a party defendant, although he pointed out that it ould be perfectly consistent with the statute to allow the Clerk to articipate as amicus curiae on the pure legal question of the scope the exemption. The General Counsel reasoned:

The law of this Circuit implicitly recognizes that the claim of congressional exemption under the Act may be litigated without either the presence of the Congress or its

officers as party defendants. Holy Spirit Association v. Central Intelligence Agency, 636 F.2d 838, 842 (D.C. Cir. 1980). In that case, the claim of congressional exemption, based as it is here partially on a letter from the Clerk of the House, was resolved under legal standards previously enunciated. Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir 1978) vacated in part on other grounds, 607 F.2d 367 (D.C. Cir. 1979) cert denied, 445 U.S. 927 (1980). The instant case can be resolved on the same basis, without the Clerk's presence as a party, furnishing his legal position to the Court as amicus curiae. Holy Spirit Association v. Central Intelligence Agency, supra. [Id. at 4 (footnote omitted]

Turning next to the Speech or Debate Clause1 issue, the General Counsel argued that the Clerk's performance of legislatively assigned (by the rules of the House) custodial functions, including an assertion of exemption under the FOIA, was immune from suit under the Clause:

[T]he Clerk in discharging his duties with respect to House papers is "engaging in a sense in acts generally done in relation to the business before Congress." . . . The decision whether to make public all, part or none of legislative proceedings is equally immune from suit, Doe v. McMillan, 412 U.S. 306, 312 (1973), Aff'g Doe v. McMillan, 459 F.2d 1304, 1315 (D.C. Cir. 1972) and the Clerk's interaction with agencies to protect the non-public portion of congressional proceedings can no more serve as a predicate for suit against the Clerk under the Act, than a decision to publish or not to publish portions of legislative proceedings involving an investigation into the assassination of President Kennedy or Martin Luther King. United States v. Peoples Temple of the Disciples of Christ, 515 F. Supp. 246 (D.D.C. 1981) Doe, supra at 312 (legislative decision to authorize publication immune). Goland v. Central Intelligence Agency, supra at 345 n. 30. [Id. at 5-6 (footnote omitted)] On December 7, 1981, the Defense Department and the CIA filed their answer to the complaint, asserting that: (1) it failed to state a claim upon which relief could be granted; (2) the court lacked jurisdiction over the subject matter of the action in that no "agency record" had been improperly withheld; and (3) with respect to the CIA, the plaintiff had failed to exhaust his administrative reme dies.

On December 21, 1981, discovery began in the case with the plaintiff filing his initial interrogatories and requests for produc tion of documents on the Defense Department and the CIA. The plaintiff's requests for admissions were filed the next day.

On December 31, 1981, the plaintiff filed an opposition to the motion to dismiss of the Clerk of the House. Contending that the Defense Department and the CIA were withholding the requested

The Speech or Debate Clause of the U.S. Constitution provides that for any Speech a Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

documents "at the behest of the Clerk" (on the grounds that they were Congressional, not agency, records), the plaintiff argued:

The actions of the Clerk of the House taken to influence federal agencies that records in their possession are Congressional records for Freedom of Information Act purposes do not constitute "an integral part of the deliberative and communicative processes" alluded to by the Supreme Court, nor is their protection "necessary to prevent indirect impairment of such deliberations." Indeed, the Clerk has not set forth any facts showing how suit against him, in the circumstances presented by the instant suit, would either directly or indirectly impair protected legislative deliberations. [Plaintiff's Opposition To Motion To Dismiss..., December 31, 1981, at 2]

Because, in the plaintiff's view, the actions by the Clerk were not an integral part of the legislative process, nor were they necessary to protect legislative independence, he maintained that they were outside the protection of the Speech or Debate Clause. Accordingly, the plaintiff argued, the Clerk's motion to dismiss should be denied.

On January 19, 1982, U.S. District Judge Thomas A. Flannery issued an order granting the Clerk's motion to dismiss. Citing Holy Spirit Association v. Central Intelligence Agency, 636 F.2d 838 (D.C. Cir. 1980) (see page 386 of this report for a discussion of that case) and Goland v. Central Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978) (see page 223 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case), Judge Flannery found that there was "no authority or necessity for retaining the Clerk as a party defendant in this action."

Subsequent to the court's order, discovery involving the Defense Department and the CIA has continued.

Status-The case is pending in the U.S. District Court for the District of Columbia. Although the Clerk of the House has been lismissed as a defendant in the case, it is likely that he may paricipate in the proceedings in the future on an amicus basis.

XI. The Congressional Subpoena Power

lenate Permanent Subcommittee on Investigations v. Cammisano No. 81-647-CFX (U.S. Supreme Court) and No. 81-1898 (D.C. Cir.)

On April 2, 1980, the Permanent Subcommittee on Investigations f the U.S. Senate voted to hold hearings on organized crime and to abpoena William Cammisano (then serving a five-year sentence at e Federal Center in Springfield, Missouri for a violation of the lobbs Act (18 U.S.C. § 1591)) to testify concerning his knowledge of he subject. The next day, Senator Sam Nunn, the Chairman of the ubcommittee, issued a subpoena to Mr. Cammisano, and the Subommittee approved a resolution requesting an immunity order. At he request of the Subcommittee, on April 10, Federal Judge eorge Hart of the U.S. District Court for the District of Columbia sued a writ of habeas corpus ad testificandum directing that Mr. ammisano be produced to testify before the Subcommittee from

April 28 through May 5. Also on April 10, the Senate Legal Counsel notified the U.S. Attorney General of the Subcommittee's intention to request an immunity order, and five days later the Attorney General's designate waived his statutory right to a waiting period between notification and the request for an order and agreed not to seek deferral of the order. On April 18, therefore, the Subcommittee formally applied in Federal court for an immunity order pursuant to section 201(a) of the Omnibus Crime Control Act of 1970 (18 U.S.C. § 6005).1 [Misc. No. 80-0102]

Finding that the procedural requisites of the statute had been satisfied, the court issued the immunity order for Mr. Cammisano the same day, directing that he could not refuse to testify on the basis of his privilege against self-incrimination. The order granted him "use" immunity, precluding the use of any testimony compelled under its terms (or any information derived from his testimony) from being utilized in a criminal prosecution against him (other than a prosecution for perjury).

On May 1, 1980, the Subcommittee held a hearing in Kansas City on organized crime, and Mr. Cammisano, accompanied by counsel, appeared as a witness. When questioned, he refused to answer other than to provide his name and address and to identify the crime for which he was currently serving a prison sentence. Despite being provided with a copy of the immunity order and being directed by the Chairman to answer the questions put to him, Mr. Cammisano continued to refuse to respond, relying in part on his privilege against self-incrimination.

Because of Mr. Cammisano's recalcitrance, the Subcommittee and the full Government Affairs Committee voted to direct the Senate Legal Counsel to bring a civil action in Federal court to enforce the Subcommittee's subpoena, and the Senate unanimously passed a resolution on September 15, 1980 authorizing such action (S. Res. 502, 96th Cong. 2d Sess. (1980)). Subsequently, on September 19th, the Senate Legal Counsel applied under the Ethics in Government Act to the U.S. District Court for the District of Columbia for an order enforcing Mr. Cammisano's duty to testify.2

118 U.S.C § 6005 provides: (a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before either House of Congress, or any committee of the two Houses, a United States district court shall issue, in accordance with subsection (b) of this section, upon the request of a duly authorized representative of the House of Congress or the committee concerned, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part. (b) Before issuing an order under subsection (a) of this section, a United States district court shall find that

(1) in the case of a proceeding before either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House;

(2) in the case of a proceeding before a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee; and (c) Upon application of the Attorney General, the United States district court shall defer the issuance of any order under subsection (a) of this section for such period, not longer than twenty days from the date of the request for such order, as the Attorney General may specify.

2 The application was made pursuant to section 705(f) of the Ethics in Government Act of 1978 (28 U.S.C. §1364(a) (1978)) which provides in relevant part:

(a) The United States District Court for the District of Columbia shall have original jurisdic tion, without regard to the amount in controversy, over any civil action brought by the Senate or any authorized committee or subcommittee of the Senate to enforce, to secure a declaratory

Continued