Εικόνες σελίδας
Ηλεκτρ. έκδοση

were only taken as accurate representations of the trial record. Members of the Ethics Committee staff have shown those tapes in question to the ultimate trier of fact, the United States Senate, by presenting them to individual members.

At such showings, we allege, there have been prejudicial ex parte contacts and communications made, inaccurate representations by the staff as to what these tapes portray. Senator Williams has never had an opportunity to demonstrate to the full Senate, the ultimate trier of fact, the imperfect nature of these tapes, the alterations that took place within them.

This is prime amongst the expert testimony he would seek to produce to the ultimate trier of fact, the Senate.

I would urge this Court that there is no way that that taint, created by these ex parte contacts, may be attenuated but for the allowance of the Senator to have full due process rights at the hearing in question.

Finally, Your Honor, I would only submit, we don't ask or we certainly don't seek to have Your Honor tell the legislative branch of the United States how to proceed in terms of the rules they would seek to formulate about that which is done.

We merely ask that Your Honor direct the legislative branch to go forward in whatever fashion they see fit to do but do it in a way that Senator Williams has the protection and umbrella of the constitutional rights that any individual in this nation would have subject to such a proceeding. Thank you, Your Honor.

The COURT. This motion for temporary restraining order brought on behalf of Senator Harrison A. Williams, Jr., senior Senator from New Jersey, comes before the Court on the eve of that point in time when the Senate as a body for the first time must consider the question of his possible expulsion at some later date.

The seriousness of the proceedings is apparent. They are at least somewhat adjudicatory in nature. They will have a profound effect on the Senator.

Counsel raises concerns that are felt by himself and the Senator as to whether or not he will receive in the course of these historic proceedings which are about to start that degree of due process protection which the Constitution may afford in these highly unusual circumstances.

The difficulty that the Court confronts is that the Court is being asked, on behalf of the Judiciary, to intervene at these early stages in the Senate's deliberations in a manner which would require the Court to instruct the Senate as to how it is to proceed, perhaps even to instruct the Senate as to how its Committee on Ethics should have proceeded; and, in addition, to interpret what are perceived to be conflicts between the general rules of the Senate and the rules of the Committee.

Stating the issues in that fashion, it is, I think, crystal clear that the Court should not intervene.

Apart from the deference that must be shown by the Court to a coordinate body of the Government, the application made at this stage is clearly premature.

As far as the Court is aware, there has never been an instance in our history where the Federal Courts have presumed to tell a body of Congress, in the middle of its deliberations, how it should deliberate; and this Court does not intend to do it.

I think the chances of success on the merits on these issues are non-existent.

I think the public interest requires that the Court not intervene. A temporary restraining order is a most extraordinary writ and one that should not issue except when the Court is confronted with clear issues of fact and law in a circumstance such as this and neither of those is present.

I would also point out that the application for the motion for temporary restraining order does not comply with the Court's rules in that it fails to have an accompanying supporting affidavit and other appropriate papers.

The motion for temporary restraining order will be denied.
It is three-ten.
Thank you, gentlemen.
Mr. FLYNN. Thank you.


(CIVIL ACTION No. 81-2839)


[ocr errors]


Feburary 3, 1982


Plaintiff is a United States Senator. The Senate Select Committee on Ethics has recommended and placed on the Senate calendar for consideration by the full Senate a resolution that the plaintiff be "expelled.” S. Res. 204, 97th Cong., 1st Sess. (1981). On November 23, 1981, after an exchange of correspondence with the Majority and Minority Leaders of the Senate about procedures to be followed by that body in its consideration of the expulsion resolution, plaintiff filed a complaint in this Court against them, the Vice President of the United States, other Senate leaders, and Senate staff members and consultants. He alleges that the Senate Committee which reported out S. Res. 204, inter alia, unlawfully acted as investigator, grand jury, and trier of fact, and that the full Senate threatens to violate his constitutional rights to counsel, to compel the presence of witnesses, and to present evidence when it considers and acts on the expulsion resolution. The complaint asks this Court to enjoin the Senate from "proceeding” with S. Res. 204, or that this Court enter a declaratory judgment that it would be unlawful for the Senate to proceed with that resolution without allowing plaintiff to examine witnesses and to be represented by counsel who fully participated in the proceeding.

Judge Gerhard A. Gesell has earlier denied plaintiff's application for a temporary restraining order as premature. Hearing on Motion for Temporary Restraining Order, Nov. 27, 1981, Transcript at 27. The matter is now before the Court on defendants' motion to dismiss and plaintiff's opposition thereto.

Defendants' dismissal motion asserts that plaintiff's action is (1) premature and unripe for adjudication, (2) barred by the Speech or Debate Clause of the Constitution, (3) presents no justiciable question, and (4) fails to state a claim for which equitable relief can be granted.

Plaintiffs opposition to the motion relies upon court decisions which emphasize the constitutional rights of individuals to representation by counsel and to compel attendance of witnesses for court trials and upon other decisions where courts have tested actions previously taken by Congress for compliance with various constitutional requirements. E.g., Powell v. McCormack, 395 U.S. 486 (1969); see also, Christoffel v. United States, 338 U.S. 84, 90 (1949).

Plaintiff's arguments and authorities fail to meet defendants' contention that the claim is not ripe for adjudication. Plaintiff is asking this Court to impose a prior restraint upon Senate consideration of an expulsion resolution. Yet, as Judge Gesell pointed out in the hearing on the temporary restraining order, "plaintiff cannot know what representation and opportunity to present evidence the Senate will authorize until he has presented to that body the claims he makes here." Transcript at 5. No Senate decision about procedures for consideration of S. Res. 204 “has been formalized” nor have the effects of any such decision been felt in a concrete way. . . ."Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-9 (1967). It is a fundamental that federal courts should not "decide questions of a constitutional nature unless absolutely necessary. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); cf. Chandler v. Judicial Council, 398 U.S. 74, 86-88 (1970). As this Circuit ruled long ago, courts "cannot enjoin legislative debate..." Hearst v. Black, 87 F.2d 68, 72 (D.C. Cir. 1936).

Defendants' claim that the case is not ripe for adjudication is reinforced by the Speech or Debate Clause. The Supreme Court has held that the prohibitions of the Speech or Debate Clause are absolute within the sphere of legitimate legislative activity-see, e.g., Eastland v. United Servicemen's Fund, 421 U.S. 491, 503 (1973)-or with respect to other matters which the Constitution places within the jurisdiction of either House. Gravel v. United States, 408 U.S. 606, 625 (1972). In addition, Article I, Section 5, Clause 2 of the Constitution textually commits to the Senate the power to:

determine the Rules of its Proceedings, punish its Members for disorderly behavior, and with the concur

rence of two-thirds, expel a member.” The doctrine of separation of powers further weakens plaintiff's claim. Baker v. Carr, 369 U.S. 186, 217. Nor is it ripe for consideration as a declaratory judgment. Pauling v. Eastland, 288 F.2d 126, 130 (D.C. Cir.), cert. denied, 364 U.S. 900 (1960). Accordingly, the accompanying order will grant defendant's motion to dismiss.

Ordinarily, the Court would hear argument on a case of this importance. However, the issues are, at this point, purely legal. They have been well briefed by counsel. In connection with plaintiffs application for preliminary injunction, Judge Gesell afforded the parties a generous opportunity to argue from substantially the same materials as are presented now. This Court has had the benefit of the transcript of those arguments and Judge Gesell's comments and ruling. Senate consideration of the matter is now scheduled to begin later this month. Accordingly, pursuant to Local Rule 1-9(f), and without in any way demeaning either the parties or the matter, the Court has ruled without hearing oral argument.


United States District Judge. Date: February 3, 1982.


Civil Action No. 81-2839




Filed February, 18, 1982

ORDER Upon consideration of the Motion for Reconsideration of this Court's Order of February 3, 1982, it appearing that the full Senate has not yet determined the rules to govern plaintiff's expulsion proceeding and that the Speech and Debate Clause remains an obstacle to plaintiff's claims, it is this 18th day of February, 1982, hereby: ORDERED: That the Motion for Reconsideration is DENIED.

Louis F. OBERDORFER, United States District Judge.

« ΠροηγούμενηΣυνέχεια »