CRS-30 New York and had served in previous Congresses, pending an investigation of certain charges. A special investigating committee thereafter reported that he met the constitutional qualifications for membership, however, he had asserted an unwarranted privilege and immunity from the processes of the Courts of New York, that he wrongfully directed House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on Ilouse Administration in preivous Congresses. It recommended that he be seated, censured, fined and deprived of his seniority. After debate, the House adopted a resolution of exclusion by more than a two-thirds minority. Powell immediately filed suit in the U.S. District Court, D. C. against five members of the House individually, and as representatives of the class of citizens serving in the House, the Speaker, the Clerk of the House, the Sergeant-at-Arms and the Doorkeeper, individually andin their official capacities. The District Court dismissed the petition for want of jurisdiction, the Court of Appeals affirmed the dismissal on somewhat different grounds, and the U.S. Supreme Court ruled that the dismissal was error; that Powell was entitled to a declaratory judgment that the exclusion from the 90th Congress was unlawful. The Supreme Court affirmed the dismissal as against the Congressmen but remanded the case to the District Court with instructions to enter a declaratory judgment and for further proceedings against the Clerk, the Sergeantat-Arms and the Doorkeeper with respect to back pay, etc. consistent with that opinion. CRS-31 In accordance with 1. Res. 376, 90th Congress, 1st Sess., (113 Cong. Record, Part 5, pp. 6035-6049 particularly pp. 6040, 6019) Bruce Bromley (see p. 6602), of the firm of Cravath, Swaine & Moore of New York, was appointed to represent the louse, its members and officers. Other members of the firm who appeared "of counsel" at various times were John R. llupper, Thomas D. Barr, Jay E. Gerber, Duane W. O. Krohuke, Peter B. Sobol, and in the District Court, Victor M. Earle III. Also "of counsel" was the Washington, D.C. firm of Wilmer, Cutler & Pickering, various members which also appeared (Lloyd N. Cutler, John H. Pickering Louis F. Oberdoeter, Max 0. Truitt, Jr., Timothy B. Dyk and James S. Campbell) as well as Dorsy D. Ellis, Jr., of the College of Law of the University of Iowa. 个 Fo Shark. Dr. Freeman W. Sharp American Law Division Ext. 6006 Mr. Ludlam of your subcommittee staff requested me to write you concerning my representation of certain members of Congress and congressional staff in the case of Doe, et al. v. McMillan, et al. The case was filed in the United States District Court for the District of Columbia, where the Office of the United States Attorney represented all of the congressional respondents. The complaint was dismissed by the trial court. An appeal was then taken by plaintiffs to the United States Court of Appeals for the District of Columbia Circuit. Prior to the appeal being briefed and argued, this firm was retained on behalf of certain of the congressional defendants. Our retention was for the purpose of working with the Office of the United States Attorney in representing congressional appellees at the Court of Appeals level. The legal work done at the appellate level was cooperative. Private counsel did a great deal of fact gathering and legal briefing and consulted actively with the United States Attorney's Office. A brief was filed on behalf of the congressional appellees by the United States Attorney's Office and by private counsel, and the case was argued by the Chief of the Appellate Section of the United States Attorney's Office. A decision favorable to all appellees was then forthcoming. In the spring of 1972 the plaintiff-appellants filed a petition for certiorari in the Supreme Court, the principal issue being the extent of immunity afforded congressmen and their aides under the Speech or Debate Clause of the Constitution. At this time the Gravel case was pending in the Supreme Court. Gravel had been briefed and was scheduled for argument during the third week of April 1972. In Gravel, the government, in the person of the Solicitor General of the Department of Justice, had taken a very restrictive position with respect to the scope of the Speech or Debate Clause immunity, and this position was particularly restrictive with respect to the immunity afforded congressional REASONER, DAVIS & VINSON 2 aides. The position taken by the Department of Justice was in fact much more restrictive than that enunciated by the Court of Appeals for this circuit in McMillan. Nevertheless I counseled with our clients who accepted my recommendation that I discuss with the Solicitor General the possibility and propriety of the Department of Justice affording representation to the congressmen and their aides at the Supreme Court level. I enclose a copy of my letter of April 3, 1972, to the then Chairman of the Committee on the District of Columbia reporting on my discussions with the Solicitor General; and I also enclose a copy of the Solicitor General's letter of April 13, 1972, to the Honorable Ancher Nelsen, the ranking minority member of that committee, on the same subject. The latter sets forth the Solicitor General's suggestion that the congressmen and other federal respondents retain private counsel. Following this correspondence, the congressmen and their aides concluded that it would be appropriate to retain private counsel at the Supreme Court level, and we proceeded to prepare and file a brief in opposition for the legislative respondents. The Supreme Court later granted certiorari in McMillan at about the same time the Court decided Gravel. In its opinion in Gravel, the Court took the expansive view of the scope of the Speech or Debate Clause immunity of congressmen and their aides which we were advocating in a different context in McMillan. Again I counseled with our legislative clients to determine whether they wished me to discuss with the Solicitor General the possibility of that office representing the legislators and their aides in connection with a brief on the merits and argument before the Supreme Court in McMillan: I did discuss this with the Solicitor General and he took the position, quite rightly I think, that it would be unwise, if not improper, for his office to advocate Speech or Debate immunity in the manner required to present a full and aggressive response in McMillan, given the fact that he had so recently argued, in a different context, for a more limited application of such immunity. I enclose a copy of my letter of March 30, 1973, to the then Chairman of the Committee on the District of Columbia, which is relevant to this. Private counsel then proceeded to brief and ultimately argue the McMillan case on behalf of congressmen and their aides; and, of course, I view the decision of the Court in McMillan as vindicating our position with respect to the scope of the Speech or Debate Clause immunity. REASONER, DAVIS & VINSON 3 I should add that I have serious reservations about setting up a separate office in the legislative branch which would furnish counsel in litigation to congressmen and their aides. This position is primarily based on my narrow view of "congressional standing to sue", i.e., that congressmen have no more recourse to judicial remedies than any other citizen. However, there are very rare cases, well illustrated by Gravel and McMillan, where the legislative branch does need counsel from without the executive branch. These cases involve those instances where the executive branch's view of the law impinges upon asserted rights or prerogatives of the legislature in a fundamental way. These fundamental differences are well illustrated by the Speech or Debate immunity issue and by the veto issue presented in Sampson v. Kennedy. However, such cases have been infrequent and I trust that Congress has had no difficulty in obtaining competent private counsel. The vast majority of cases in which Congress needs representation, however, pose no such problems; and in such cases the Congress has been well served, I think, by the Department of Justice. If you would like further information or I can be of further assistance, please let me know. Sincerely, And Jun Fred M. Vinson, Jr. FMV: mfc Enclosures |