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With respect to Mr. Cammisano's contention that there was a gap in the Subcommittee's authorization to continue its investigation, the Senate Legal Counsel concluded:

We are unable to see any significance in the asserted "gap" between February 28, 1981, and March 3, 1981,** relied on by Cammisano. The Senate has provided that the Subcommittee's authority would continue; the Subcommittee has certified that its interest continues; and by their terms, this Court's orders of October 24 and December 29, 1980, continue. Thus, the Subcommittee continues to be entitled to Cammisano's testimony, as ordered by this Court; Cammisano still refuses to provide it. There is no discontinuity that should lead to this case being dismissed. **In fact, since S. Res. 57 authorized activity from March 1, 1981, there was no gap. [Memorandum in Support of Motion To Implement the

Order of December 29, 1980 . . ., July 16, 1981, at 6-7] Prior to the July 31, 1981 date subsequently set for Mr. Cammisano to appear in district court to purge himself of civil contempt, he signed a stipulation waiving his appearance and stating that he would continue to refuse to answer the Subcommittee's questions. The stipulation was filed on the 31st and the pending cross motions were argued before Judge Hart at that time. The same day, Judge Hart issued an order denying Mr. Cammisano's motion to be discharged from the finding of contempt, and granting the Subcommittee's motion that the December 29, 1980 order be implemented. Judge Hart further directed that Mr. Cammisano's confinement under the contempt order, which would interrupt his criminal sentence, would begin on August 3 and end, unless otherwise terminated under the terms of the December 29th order, at the adjournment of the 97th Congress.

On August 7, 1981, Mr. Cammisano filed a notice of appeal of Judge Hart's order to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 81-1898]

On September 4, 1981, Mr. Cammisano filed a petition for a writ of certiorari in the U.S. Supreme Court (No. 81-647-CFX) asking that Judge Wright's May 13th appeals court decision be reviewed The issues he raised-and the arguments he put forward-were identical to those considered in the lower courts, relating to the original grant of immunity and the validity of the contempt order. Maintaining that the case was one of first impression since it was the initial proceeding for enforcement of a Senate subpoena pursuant to 28 U.S.C. $ 1364,3 Mr. Cammisano urged the Court to take the case to settle important questions of Federal law not previously addressed.

On November 4, 1981, the Subcommittee filed a memorandum in opposition to the petition for certiorari, asserting that the three statutory issues raised-relating to the notice requirement, the plea bargaining agreement, and the interruption of the criminal sentence-had all been correctly decided by the lower courts, and did not warrant review by the Supreme Court. In a reply brief filed on November 30, 1981, Mr. Cammisano disputed the Subcommittee's reasoning and again maintained that the Court should review the case because it was a matter of first impression which ultimately would affect the rights of all those subject to Senate subpoenas.

3 See footnote 2, supra.

On November 30, 1981, the Supreme Court, without any statement, denied the petition for a writ of certiorari. (50 LW 3447]

Although the appeals court's May 13, 1981 decision was ultimately upheld, Mr. Cammisano was still attempting to be discharged from the finding of contempt. District Judge Hart's July 31st order implementing the contempt sentence had been appealed to the Court of Appeals for the District of Columbia Circuit (No. 81-1898, see supra, page 408), and on September 24, 1981, Mr. Cammisano filed his brief urging reversal. In his brief, Mr. Cammisano restated his contention made in the district court that:

.. with the expiration of the authorization for the Subcommittee to make its investigation on February 28, 1981, ... his

his contempt thereby abated and ... the new investigation authorized on March 3, 1981, constitutes a new investigation requiring a new subpoena, immunization proceeding and contempt proceeding should Mr. Cammisano refuse to answer the Subcommittee's questions ... The question presented is whether or not the Senate can retroactively authorize the activities of a Subcommittee and make that authorization retroactively effective for the purpose of punishing an individual for contempt for refusing to answer the Subcommittee's questions. The answer must

be no. [Brief of Appellant, September 24, 1981, at 11-12] Insisting that the three-day lapse was significant, Mr. Cammisano maintained that the court should require the Senate to keep its authorizations current and in force at all times if incarceration was to result. He noted that in a similar case involving a grand jury whose term had expired, Shillitanti v. United States, 384 U.S. 364 (1966), the Supreme Court had ordered the prisoner released from his contempt commitment.

On October 29, 1981, the Subcommittee filed its brief along with a motion for summary affirmance, or, in the alternative, for expedition. In its brief the Subcommittee argued that it had followed the correct statutory procedure to avoid abatement of the case at the conclusion of the 96th Congress. Noting that the Ethics in Government Act in section 1364 specifically stated that an action would not abate at the adjournment of a Congress if the Senate or a committee or subcommittee certified a continuing interest in the information sought, the Subcommittee pointed out that it had certified in July of 1980 and 1981 that it would remain interested in Mr. Cammisano's testimony through the end of the 97th Congress. In disputing Mr. Cammisano's two-pronged statutory argument, the Subcommittee reviewed Congressional intent:

First, (Cammisano) argues that the statutory certification provision does not apply because "[t]hat provision only permits continuance of the investigation and contempt proceedings during adjournment. The Subcommittee's author

[blocks in formation]

ization expired after the 97th Congress had convened and
not during adjournment.Brief of Appellant at 16-17 (em-
phasis supplied).

Cammisano's argument does not comport with Congress' intent. In creating the certification procedure, Congress was concerned about the problem that an action might “abate upon adjournment sine die at the end of a Congress," 28 U.S.C. § 1364 (Supp. III 1980). Congress' intent in authorizing interested Senate subcommittees to maintain the vitality of their enforcement proceedings through adjournments was to continue the process of obtaining testimony through the biennial cycle of recess, return and renewed authorization. The legislative history details the ill effects Congress intended to avoid, which would ensue from Cammisano's theory: the subcommittee's ability to obtain testimony would depend on the arbitrary factor of whether a witness's refusal occurred a short time or a long time before adjournment, enforcement efforts would be disrupted, and the subcommittee would have to reinitiate judicial enforcement proceedings and thereby "squander judicial resources.” S. Rep. No. 95–170, supra, at 95. The Court should "interpret the section consonant with congressional intent and common sense, Application of Senate Subcommittee, 655 F.2d at 1236, and hold that a renewal of authorization is part of the adjournment process comprehended in the statutory provision that "An action

.. shall not abate upon adjournment . if the ... subcommittee ... certifies to the court that it maintains its interest ...” 28 U.S.C. § 1364(b).

Second, Cammisano speculates that the effect of the three-day “gap" was that if he had “desired to answer the Subcommittee questions on those days nobody was authorized to take his answers. He could not have purged his contempt. .Brief for Appellant at 17. Cammisano does not assert that before, during, or after the three day "gap" he ever actually "desired to answer the Subcommittee questions.” Indeed, at the time of the "gap” Cammisano's contempt incarceration was stayed by District Court order pursuant to a joint request by the Subcommittee and Cammisano, which allowed him to complete his appeal to this Court and then decide whether to answer the Subcommittee's questions before incarceration began. Thus, his argument is entirely hypothetical and is not properly presented in this case. [Brief of Appellee, October 29, 1981, at 10-12

(footnote omitted)] Finally, citing McGrain v. Daugherty, 273 U.S. 135 (1927), the Subcommittee maintained that the Senate, as a continuing body, had inherent authority to continue or renew the proceedings of its committees or subcommittees, quite apart from section 1364.

On November 2, 1981, Mr. Cammisano filed an opposition to the Subcommittee's motion for summary affirmance, arguing that: (1) the facts and law regarding the particular issues in the appeal had not been heard by the court in the initial action; (2) since the case was one of first impression, it should be fully and completely considered; and (3) there was no detriment to the Subcommittee if a full hearing on the issues took place since Mr. Cammisano was presently serving his contempt sentence, the district court having denied his motion for a stay pending appeal. Mr. Cammisano did indicate that he had no objection to the Subcommittee's alternative request for expeditous consideration.

On November 12, 1981, Mr. Cammisano filed a reply brief reiterating his earlier arguments. He also attacked the Subcommittee's reliance on the McGrain case, claiming that in that case the Senate authorized continuance of the investigation prior to the expiration of the initial authorizing resolution.

On November 25, 1981, in a per curiam order, the court denied the Subcommittee's motion for summary affirmance, but agreed to schedule the case for argument as soon as the business of the court permitted. Oral argument was subsequently held on February 23, 1982

On February 25, 1982, the court of appeals issued an order affirming the judgment of the district court. In a memorandum which accompanied the order, the court found “no warrant” for requiring the Subcommittee to begin again its quest for Mr. Cammisano's testimony solely because of the three-day gap in the renewal of the subcommittee's authorization. The court reasoned:

Given the undisputed facts of this case, it is plain that the three-day delay in renewal of Committee and Subcommittee operating authority subjected Cammisano to no unfair treatment or disadvantage. None of the terminating events specified in the district court's December 29, 1980 order has occurred. Cammisano concedes that the Committee and Subcommittee continued to exist during the threeday interval,' and that he did not ask to testify then or, indeed, at any prior or subsequent time. Had Cammisano sought to purge himself of contempt on March 1, 2, or 3, 1981, his desire to do so might have been accommodated in a number of ways. For example, had Cammisano so requested, the Subcommittee could have arranged for the taking of his testimony and then ratified that action upon passage of the resolution renewing its operating authority: Cammisano, however, made no effort during the "gap' period or at any other time to purge himself of contempt. He complains of no lack of notice, no abatement of the Subcommittee's interest in his testimony, no denial of constitutional or statutory right.4 Nor could he tenably raise such complaints.

* Cammisano compares his situation to that of a person held in civil contempt for refusing to testify before a grand jury. But a grand jury's life does not extend beyond the expiration of its term. See Shillitani v. United States, 384 U.S. 364 (1966). By contrast, the Senate Permanent Subcommittee on Investigations, as well as the parent Committee on Governmental Affairs, remained viable entities throughout the period in question as units of a larger continuing body, the United States Senate. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 512 (1975).

* Cammisano asserts that "[t]he expiration date of the Subcommittee's authority is like a statute of limitations." Brief of Appellant at 14-15. Assuming the analogy is appropriate, it does not advance Cammisano's argument. A legislature, if it is so minded and does not trench on any vested property or well-founded reliance interest, may extend a limitation period even after the period initially specified has ex

pired. See International Union of Electrical Workers, Local 790 v. Robbins & Myers,
Inc., 429 U.S. 229, 241-44 (1976); Davis v. Valley Distributing Co., 522 F.2d 827, 830

n. 7 (9th Cir. 1975), cert. denied, 429 U.S. 1090 (1977).
[Memorandum, February 25, 1982, at 2-4)

Status—The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. The time for filing a petition for certiorari in the U.S. Supreme Court has not yet expired.

The complete text of the May 13, 1981 opinion of the circuit court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

The complete text of the February 25, 1982 memorandum of the circuit court is printed in the “Decisions” section of this report at

page 419.

XII. Campaign Activities United States ex rel Joseph v. Cannon

[See page 109.]

XIII. Prosecution for Disrupting Congressional Proceedings United States v. Roth

[See page 378.]

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