allows the Senator full participation by counsel as an element part of due process.

The case I cite to this effect is Tetro v. Tetro, 544 P. 2d 17.

I would urge that certainly full participation by counsel is more than counsel's presence at the side of the Senator when these proceedings go forward. Most important or perhaps of extreme importance, I would urge to the Court, that since the Senator's criminal trial has not yet terminated, it is premature for the Senator to be subject to disciplinary proceedings on December 5 without counsel. If the Senator is to go forward with defending himself without right to counsel, the case of Gabrilowitz v. Newman, at 582 F. 2d 100, clearly provides that they reject any assertion that there is no connection between the criminal and civil proceedings involved. The COURT. Are these civil proceedings?

Mr. FLYNN. I do not concede they are civil proceedings.

They are, Your Honor.

The COURT. I thought you were telling me a moment ago they weren't?

Mr. FLYNN. I am telling you that-

The COURT. I don't understand your point.

Mr. FLYNN. The only reason I raise the Gabrilowitz case, in Gabrilowitz, the proceedings before a university disciplinary committee were apparently civil in nature. Nevertheless, it was the ruling of the court that since that individual was still subject to a criminal proceeding, a criminal proceeding which had not run its course and not terminated, it would be constitutionally violative to compel that individual to be present at that disciplinary proceeding without counsel.

The theory, if I can recollect correctly, was any statements made by the individual at the disciplinary proceeding without the benefit of counsel could ultimately conceivably be used against him in the criminal proceeding, which was not terminated.

Certainly it is not beyond the realm of possibility that if Senator Williams is compelled to go forward without counsel, any statements he may make would be capable, at least by way of impeachment, of introduction in the ongoing proceeding in New York.

The COURT. Unless the Senate, in its wisdom, decides to immunize him, which it has total power to do.

Mr. FLYNN. That may be a possibility, Your Honor. I certainly concede that.

Again, we have no way of knowing what will develop on December 3.

We have cited to Your Honor cases analogizing the right to counsel, the right to an adversary hearing in a termination proceeding. Certainly we submit to the Court what we have here is obviously a termination proceeding at a minimum.

These cases actually build upon the Supreme Court case of Green v. McElroy.

The capstone arguments we make before Your Honor in terms of the Senator's constitutional rights are found in the landmark Supreme Court case of Goldberg v. Kelly, with which I am sure Your Honor is familiar. The basic premise of that case being:

The fundamental requiste of due process of law is the opportunity to be heard and in a meaningful manner by confronting any adverse witnesses and by presenting his own arguments and evidence orally.

That opinion goes on further to state:

In almost every setting where important decisions turn on questions of fact...

As must be the case here, I would submit, since the Senate is the ultimate trier of fact.

... due process requires an opportunity to confront and cross-examine adverse witnesses.

Finally, the opinion goes on to state, lastly:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.

We submit further to Your Honor that Congress may not violate fundamental rights in the fashion within which it exercises legitimate powers vested in it.

We have cited to Your Honor the case of Christoffee v. United States, a case where, in essence, our of the highest possible regard for individual rights, the Court of Appeals refused to accept, unless there was further evidence on the record, the finding that there was a quorum in a House Committee because:

this not only seems to the Court contrary to the rules and practice of the Congress but denies petitioner a fundamental right.

The more the function performed by the Legislature, we urge Your Honor, partakes of a function which is judicial in nature, the less that function becomes a legislative one.

This point has been succinctly made in the case of United States v. Brewster, wherein it is specifically quoted that:

Congress is ill-equipped to investigate, try and punish its members for a wide range of behavior that is loosely and incidentally related to the legislative process.

The case went on further to state.

If Congress did lay aside its normal activities and take on itself the responsibility to police and prosecute the myriad activities of its members related to but not directly a part of the legislative function, the independence of individual members might actually be impaired.

I would urge this Court that what has occurred to date, if we make reference to the Ethics Committee report, is that there has been an adjudicative proceeding, that which is the closest to judicial in nature. This is not an investigative proceeding. This is not within the ambit strictly of the legislative body. This comes into the judicial sphere.

I would cite to the Court the case we most principally rely upon, which was not cited in our memorandum because it was only discovered by us perhaps an hour and a half ago.

That would be the case of United States v. Fort, which is found at 443 F. 2d 670, with specific reference to statements found at Page 680 thereof, wherein it is indicated that the Constitution is applicable to all Government action and includes congressional subcommittees.

In that particular case, although the verdict was unfavorable, the judgment of the Court was unfavorable in terms of the constitutional issues raised, it was unfavorable because the Court determined that it was not persuaded.

In fact, at Footnote 22, the Court specifically stated it was not persuaded that the function involved was an adjudicatory proceeding.

Here, I would submit, Your Honor, there is no doubt that what we have is an adjudicatory proceeding.

The Ethics Committee, itself, in its own report accompanying the resolution, has referenced this fact. This is what it is termed. This is not a stricly legislative function.

To return to the interpretation of history, itself, I would suggest to the Court that those constitutional rights which Senator John Smith enjoyed in 1807 should not now for some reason in 1981 be less available to Senator Harrison Williams.

Thank you, Your Honor.

The COURT. Thank you, Mr. Flynn.

Mr. DAVIDSON. May it please the Court, my name is Michael Davidson. I am Senate Legal Counsel and I represent the Defend

ants.

The power involved is, of course, at the heart of the power of the Congress to discipline and if necessary to remove one of its members.

It is a power which cannot be shared in any other place. It does not belong to the voters of the state who send a Senator to the Congress because they do not have the power to recall him.

A Senator is not subject top impeachment by the House and subsequent trial. It is only the Senate that my initiate and conclude a proceeding.

A Senator may not be removed from office by the judgment of any court. This is exclusively the power of each body.

The COURT. Yes, but what about the other side of it?

Do you mean to say that the Senate's conduct is totally unreviewable?

Mr. DAVIDSON. To be fair, we could argue at the end of an expulsion proceeding, it is; but the issue for the Court at this time is not necessarily that.

It is preeminently a question of timing and judicial power to in advance instruct the Senate how it should proceed in the exercise of constitutional power.

To place this in somewhat fuller factual context, these proceedings began in February 1980. The Ethics Committe, which is charged by the Senate on matters of this kind, stayed its hand so that Senator Williams' criminal proceeding in New York at that

point prospective-would not in any way be affected by simultaneous proceedings before the Senate.

After the jury returned its verdict in May 1981, the Committee resumed its proceedings in a formal way, conducted an investigation under Senate rules and under its own rules, which provide a full panoply of rights to the individual member.

He was represented by counsel. He had the right to subpoena witnesses. He had a right to confront witnesses against him.

We have submitted for the Court, as exhibits to our memorandum, the rules of the Committee, the open hearing transcript, at which the Senator was represented by counsel, and had the opportunity to call witnesses, the Committee's report and the Senator's rebuttal to that report, which the Committee printed for him and has distributed to the membership of the Sennate.

The only question that now remains is what procedures the Senate, itself, will follow in receiving and acting on this report. The COURT. No, there is a question before that, isn't there?

He says he wants to see, in effect, the grand jury minutes. They took a lot of testimony in camera and he wants to see it. You say,

no.

That is the question he poses.

Mr. DAVIDSON. The Committee has received his request-

The COURT. And turned him down.

Mr. DAVIDSON [continuing]. And turned him down.

The COURT. Right. And he says he is entitled to see the grand jury minutes, in effect.

Mr. DAVIDSON. The Senate has not received the requests from him.

The COURT. That is right. The Committee has apparently.

Mr. DAVIDSON. That is correct.

The Senator has, as any member of the body, a full panoply of opportunities, parliamentary opportunities to present the case to the Senate.

In fact, even prior to the 3rd of December he or anyone else could introduce a resolution to the Senate which could be referred to Committee to establish procedures, to deal with such questions as access to transcripts or the participation of counsel on the floor. That could be done in advance. It could be done on the 3rd.

On the 3rd, if the case is presented, the Senate could be asked to postpone consideration.

It is, as the Court correctly observed, simply the beginning of another stage of the proceeding, at which time there are the ordinary rules and precedents which may be invoked to bring to the Senate's attention what the Senator perceives to be the correct procedure to be followed.

The only action that the Senate has taken is to place the resolution on its calendar. The majority leader has simply announced that it is his intention to ask the Senate to proceed with the consideration of the resolution on the 3rd of December.

In that light, what Senator is asking the Court to do is to anticipate what the Senate will do not only with respect to procedure but also as to what it might ultimately do.

No court has ever instructed a House of the Congress how it may proceed with the business which is legitimately before it.

Whether the Court has power subsequently to review the completed action of the Senate, that is another question. In fairness, as I indicated, it would be our position at that time that the matter is non-justiciable. This matter is exclusively committed to each House of Congress. But that is not a question that the Court needs to decide today except to prehaps evaluate it with respect to the likelihood of success on the merits.

If one looks at that particular power, which only the Senate may exercise with respect to Senators, and also looks at how the Senate has proceeded to date, providing allowance for counsel to call witnesses before the Committee, opportunity to confront, I think the Court may be satisfied that the Senate has proceeded fairly in this matter and there is no reason for judicial intervention at this time. Your Honor, that is the sum of our case, if the Court has no further questions.

The COURT. I have none.

Mr. DAVIDSON. Thank you.

Mr. FLYNN. Your Honor, if may very briefly address the Court on certain issues which were recently raised:

That of simultaneous proceedings. In terms of the Ethics Committee desiring not to go forward until simultaneous proceedings had been taken care of, I would presume perhaps on the theory of comity between the branches of Government.

However, what occurred here is that the Committee only waited for the jury verdict in this case, which is no way terminates the proceeding.

The Committee has gone forward without the criminal proceeding being terminated.

The COURT. Well, the criminal proceeding won't be over for years.

Mr. FLYNN. That is correct, Your Honor.

The COURT. Yes. That is a reality that I suppose the Senators were aware of.

Mr. FLYNN. I would submit

The COURT. You will be in court for the next two or three years in the case.

Mr. FLYNN. But if the position is to be taken at least at the initial United States District Court level there would be a withholding or perhaps an extension of comity to the judicial branch there, that has not even taken place.

If the reason for the Committee's non-action, as it were, at that stage were to wait for the termination of the United States District Court proceeding, that has not terminated yet.

This, in essence, I would urge upon the Court, is an interference by the Committee within the judicial branch. It reflects an element of comity that was not extended to the judicial branch.

I would point to one of the elements of this case we seek to emphasize most strongly. It is alleged in our complaint and it is contained in the exhibits appended thereto.

Since the Ethics Committee completed its function on September 3, when S. Res. 204 was reported out, there have been instances where members of the Ethics Committee staff have exhibited the tapes made, which were not authenticated at the Ethics Committee proceedings, as one would normally authenticate such tapes, but