IN THE UNITED STATES DISTRICT Court for the DISTRICT OF

COLUMBIA

HARRISON A. WILLIAMS, JR., PLANITIFF

V.

THE HONORABLE GEORGE BUSH, ET. AL., DEFENDANTS

Civil Action No. 81-2839

Washington, D.C., November 27, 1981

The above-entitled cause came on for Hearing on Motion for Temporary Restraining Order before THE HONORABLE GERHARD A. GESELL, United States District Judge, at 2:30 p.m.

Appearances:

Robert J. Flynn, Jr., Esq., of: Hendricks & McCool,

David J. Dir, Esq., Counsel for Plaintiff

Michael Davidson, Senate Legal Counsel,

Morgan J. Frankel, Assistant Senate Legal Counsel, Counsel for Defendants

PROCEEDINGS

The COURT. Good afternoon.

The CLERK. Civil Action No. 81-2839, Williams v. The Honorable George Bush, et al.

Mr. Robert J. Flynn, Jr. and Mr. David J. Dir for the Plaintiff. Mr. Michael Davidson and Mr. Morgan Frankel for the Defendants.

The COURT. This request for a temporary restraining order comes before the Court as the duty judge today, the Court being in recess. For that reason, I have the obligation to hear the motion, although the case is assigned in all of its aspects to Judge Oberdorfer.

I have had a chance briefly to glance through the principal papers and I will hear you.

Mr. FLYNN. Your Honor, for the record, if I may, Robert J. Flynn, Jr., on behalf of the Plaintiff in this cause, Senator Harrison Williams.

As a preliminary matter, Your Honor, if I might introduce to the Court my associate, David J. Dir, who is a member of the Bar of the State of Arizona, and ask that the Court allow him to proceed in assisting me pro hac vice in this matter.

The COURT. I am pleased to have you pro hac vice.
Mr. DIR. Thank you, Your Honor.

Mr. FLYNN. Your Honor, so we begin these proceedings with a crystal clear and precise framework as to those things which Plaintiff is requesting, I would indicate to the Court that we are not in any way seeking to enjoin the proceedings in the Legislature which would seek to expel Senator Williams on the theory that the Legislature may not conduct such proceedings.

Secondarily, we are not suggesting in any way that the Senate may not proceed to consider the expulsion issue according to rules which it may establish as appropriate at that time.

The issue, as we see it, and the relief we request of this Court is simply that when this expulsion proceeding is heard before the full Senate, the ultimate trier of fact in this case, that Senator Williams be afforded full due process rights in terms of right to participating counsel at such proceeding, right to subpoena witnesses in his own behalf and to compel and cross-examine those witnesses against him, an opportunity for a full and meaningful hearing at such proceeding.

I would indicate to the Court by way of reference that that which we asking is not historically unprecedented.

In fact, in 1807, when there was that which to my knowledge is the only explusion proceeding concerning any Šenator which reached the Senate floor, and upon which there was an actual vote, that case being The Matter of John Smith, which is reported, I believe, in Volume 3 of Hinds Reports, Senator John Smith was allowed counsel, who participated fully on the Senate floor; and the ultimate result in that proceeding was a vote of nineteen votes for explusion, ten votes against explusion and Senator Smith was not, therefore, expelled from the Senate.

Thus, in essence, we ask only those things from our point of view which have already occurred in the past in which to my knowledge is the only adjudicated expulsion proceeding that thas taken place in the history of the United States Senate.

The COURT. Will you not have an opportunity on December 3 to present this very point to the Senators for them to determine what sort of proceeding they propose to hold with respect to this matter? Mr. FLYNN. You Honor, the leadership, as indicated-

The COURT. I am not talking about the leadership. I am talking about the Senate.

Mr. FLYNN. It is quite possible that this opportunity would exist. Actually, Your Honor is correct, the opportunity, itself, would exist. That opportunity, however, Your Honor, would not be forthcoming until the day of December 3. This would put Senator Williams in the position of asking the Senate on the very day of the proceeding that he be allowed opportunity for these due process rights. This puts

The COURT. Well, that isn't really correct, is it?

You have ample opportunity to notify everybody in the Senate ahead of time of what your point of view is, you can send them the very papers I have in front of me.

Mr. FLYNN. That is correct, Your Honor.

The COURT. It isn't a question of surprise. It would seem to me that it is not unusual at the beginning of a proceeding for one of the parties to the proceeding to raise preliminary questions as to the appropriateness of how the trier of fact is about to proceed.

You would have an opportunity, wouldn't you, to do just that to the Senate?

Mr. FLYNN. Yes, Your Honor, in terms of requesting certainly one of the minimal rights, right to counsel, that would be the case. In terms of requesting the opportunity to subpoena and examine witnesses, I would suggest to the Court that that decision being

made December 3 would be perhaps of no worth whatsoever on the theory that were the Senate on December 3 to indicate that Senator Williams would be entitled, in addition to the right to counsel, to subpoena and call witnesses in his own behalf, he would have a very very short period of time, perhaps even less than an hour, to effectuate the issuance of those subpoenas, the service of those subpoenas and the production of witnesses at that proceeding. The COURT. Unless the Senate gave him more time.

Mr. FLYNN. That is correct, Your Honor. Unfortunately, we have no assurance that that will be the case.

The COURT. You don't have any assurance that it won't be.
Mr. FLYNN. That is true.

The COURT. I am trying to put you in my position.

Mr. FLYNN. I agree, Your Honor.

The problem that we have as counsel for the Senator in preparing the defense that we hope to be able to present before the Senate certainly as indicated in the attached exhibits which we have appended to our complaint the record is replete with the difficulties of counsel who Senator Williams had representing him before the Ethics Committee, in view of a time frame-the burden on counsel representing Senator Williams to realize December 3 as the target date where all these elements will be decided is, I urge the Court, almost to the point of, should those rights be granted at that moment, granting the Senator such rights at that time as would be meaningless, in terms of time frame and ability of counsel to exercise those rights for the Senator.

I would submit to the Court that these fundamental rights are certainly rights that an individual subject to the disciplinary proceedings which do exist here should have well enough in advance notice of such that those rights can be effectively exercised.

The issue here, I would urge this Court, is a justiciable one for several reasons:

I have here copies of the Standing Rules of the Senate. Amonst these is Standing Rule XXVI 10(a), which indicates as follows, Your Honor, if I may read a brief portion into the record:

All committee hearings, data, charts, and files shall be kept separate and distinct from the congressional office records of the member serving as chairman of the committee; and such records shall be the property of the Senate and all members of the committee and the Senate shall have access to such records.

Senator Williams, on November 6 of this year, requested of the Senate Ethics Committee certain Executive Session transcripts which his counsel previously, I believe on June 22, had requested on his behalf and on June 25 received a negative response.

Senator Williams received a negative response to this request based upon Rule 9(c) of the Rules of Procedure of the Senate Select Committee on Ethics.

These very rules, themselves, which are enacted pursuant to Senate Resolution 338, as amended, provide at Section (c) thereof:

A majority of the members of the Select Committee shall constitute a quorum for the transaction of business

except as the Select Committee may fix a lesser number as
a quorum for the purpose of taking sworn testimony.

The Select Committee shall adopt rules of procedure not
inconsistent with the rules of the Senate governing Stand-
ing Committees of the Senate.

I would submit, Your Honor, there is a blatant inconsistency between Standing Senate Rule XXVI 10(a) and Ethics Rule 9(c)(3). The COURT. Isn't the issue before me the question of who should determine that?

Mr. FLYNN. Your Honor, it is.

The COURT. Certainly it isn't the Court's function to interpret the rules of the Senate.

Mr. FLYNN. I would submit to the Court, Your Honor, that the case of Yellin v. United States does indicate that the application or failure thereof of Senate Rules vis-a-vis Committee Rules is judicially cognizable. The case if found at 374 U.S. 109.

The COURT. I understand that it is judically cognizable. The question is, when?

Mr. FLYNN. Your Honor-

The COURT. I suppose ultimately, if there was a contest raisedassuming for the moment that Senator Williams does not prevail but that he is expelled-it might well be within the function of a court to examine the body of rules to determine the appropriateness of the proceedings.

What I am talking about now is, is it not obvious that the Senate should be the first to interpret its own rules?

Mr. FLYNN. The problem, Your Honor, is at this stage the Senate has not interpreted this particular rule.

Certainly I believe the Court would anticipate on December 3 this issue could indeed be raised. The problem becomes, these Executive Session transcripts have been requested by Senator Williams in order that he may adequately prepare a defense.

Certainly if December 3 is the date when he will be-if he is to be-provided those transcripts by the Senate of the United States, and that is the same day he is compelled to go forward presenting his defense, those Executive transcripts are of little if any value to him in terms of his opportunity to frame that defense that he wishes to present.

We have, of course, cited Powell v. McCormack, as it is perhaps the main case in this area; but also the case of United States v. Ballin indicates that each respective House of Congress:

.. may not by its rules ignore constitutional restraints and violate fundamental rights.

We, on behalf of Senator Williams, would urge this Court that the opportunity to review those Executive Session transcripts would provide Senator Williams with vital elements of his defense. I urge this upon the Court because, as has been reflected in our compliant, there was a period of time that the Senate Ethics Committee investigated Senator Williams' wife allegedly on unrelated charges.

There was a stipulation entered into by counsel for Senator Williams, who was also counsel for his wife, George Koelzer, that none

of the information provided by Mrs. Jeanette Williams to the Investigating Committee of the Ethics Committee would ever find its way into the criminal trial.

Specially, these dealt with Biocel Corporations, Hardwicke Companies, Ritz Carlton and others.

In almost identifical fashion to the method in which these documents and testimony relating to them was provided by Mrs. Williams to the Senate Ethics Committee through her counsel, one finds in the criminal trial of Senator Williams the exact same information appearing.

Counsel at the criminal trial objected strenuously to this fact.

I would submit to the Court that it is fundamental, therefore, for the Senator to obtain these Executive Session transcripts, not only to frame his defense in the Senate undoubtedly but there also well may be information contained within them which would allow him opportunity to even at this date bring these matters to the attention of Judge Pratt in New York for his trial there is ongoing. The COURT. That is a matter for Judge Pratt, not for me.

Mr. FLYNN. Your Honor, that is correct, but in terms of the proceeding which the Senator may face, it struck me as a note quite out of tune to find in the case of Kilbourn v. Thompson, a Supreme Court case, language to the effect that:

So, also, the penalty which each House is authorized to inflict in order to compel the attendance of absent members may be imprisonment, and this may be for a violation of some order or standing rule on that subject.

Certainly we have no way of knowing when Senator Williams, if it is December 3, faces the Senate charged with violations of Standing Rule 37, would be subject to these severe sanctions. It is not without the realm of possibility, apparently, from reading this language in Kilbourn.

If this is the case, it is severe and constitutionally mandated, we urge, by the case of Argensinger v. Hamlin that the Senator must have counsel present defending him to the fullest regard, because the Senator faces threatened deprivation of liberty.

The COURT. Has he not been told that he can have counsel on the floor?

Mr. FLYNN. He has been told, Your Honor, that he may have counsel on the floor.

The COURT. That is what I understood from the papers.
Mr. FLYNN. But, in essence, counsel may not speak.

I would submit, Your Honor, that circumstances such as that do not provide effective assistance of counsel, at a proceeding such as this, which, if one observes the report prepared by the Senate Ethics Committee which accompanies S. Res. 204, is conceded to be a proceeding adjudicatory in nature.

I would submit to the Court that if this proceeding is adjudicatory in nature and is disciplinary in nature, and as Kilbourn tells us carries somehow the ultimate or possible threat of imprisonment-although, I would concede, we have no way of knowing if that severe and extreme remedy would be imposed-nevertheless, this being the case, form does not control over substance, and the proceeding although perhaps civil in form but criminal in nature