Page images
PDF
EPUB

the Clerk of the House, and on April 6, a "Deposition Subpoena To Testify or Produce Documents or Things" was served on the Clerk, calling for all billings he maintained relating to Rep. Eilberg's telephone calls from May 1973 to January 1978 and for "any controlling House Regulations pertinent to such billings and records." The subpoena, which also called for testimony from the Clerk or his designated representative, was issued by the U.S. District Court for the District of Columbia [F.S. 81-0126] upon application of the Assistant U.S. Attorney for the Eastern District of Pennsylvania.

On May 11, 1981, the Clerk filed a motion to quash the subpoena in the District of Columbia court. [Misc. No. 81-0105, subsequently changed to Civil Action No. 81-1693] In a memorandum accompanying the motion, the Clerk argued that although the Pennsylvania court had already determined that he would have to comply with such a subpoena (see pages 109-110, supra), the decision "only secondarily considered the larger, more delicate, issue of whether the courts and the executive can regulate legislative telephone usage." [Clerk's Memorandum of Points and Authorities in Support of Motion To Quash, May 11, 1981, at 11] Citing the decision of the U.S. Court of Appeals for the District of Columbia Circuit in United States ex rel. Joseph v. Cannon (see page 99 of this report for a discussion of that case), the Clerk maintained that:

Based on this Circuit's clear recognition that the "False
Claims Act... [does not] require the judiciary to develop
rules of behavior for the Legislative Branch." . . with re-
spect to prescribing what constitutes "official" duties for
congressional staff aides, .. the False Claims Act does
not provide authority for the executive and the judiciary
to prescribe for the legislature what constitutes "official"
and non-official telephone use. [Clerk's Memorandum at
12]

The Clerk contended that like the situation with respect to the definition of "official" duties for Congressional staff at issue in the Cannon case, there was a complete absence of judicially discoverable and manageable standards for determining "official" telephone use by the Congress. According to the Clerk, not only was there no legislative history concerning the correct parameters of telephone use for legislators, but, on a practical level, in order to classify calls as "official" or "non-official" it would be necessary to review the content of the conversations as well-"a far more problematical and intrusive inquiry than that posed by the Cannon complaint" [Id. at 14] Moreover, said the Clerk, "in terms of sheer volume, such an exercise takes on Herculean proportions where the review entails telephone charges from or to a Congressional office for a five year period." [Id.]

In conclusion, the Clerk put forward three other reasons why the subpoena presented a political question: (1) the issue of proper and reimbursable telephone usage by Members of Congress was "textually committed" to the legislative branch; (2) it would be impossible to decide whether a call was "official" without an initial policy determination of a kind clearly for nonjudicial discretion; and (3) judicial oversight of daily legislative activities like telephone use,

without any Congressionally endorsed standards, would imply a lack of respect for a coordinate branch.

On June 5, 1981, the Government filed its response to the Clerk's motion to quash, maintaining in essence that the Clerk had merely reiterated the identical arguments which had been presented to the Pennsylvania district court and conclusively disposed of by Judge Pollak. In the Government's view, the Pennsylvania decision was "the law of the case" and the Clerk was therefore barred from relitigating the propriety of the subpoena in another district court which was simply acting in aid of the Pennsylvania proceeding (by issuing the subpoena). Furthermore, the Government pointed out that:

the United States had no other choice than to apply to Judge Pollak for a determination of materiality and relevancy. Congress itself established the requirement that such a determination be sought before service of a subpoena. The necessity of a motion to quash is thus obviated. Therefore, Congress' own requirement mandated that Judge Pollak make the determination rather than the District Court for the District of Columbia. In attempting to relitigate the materiality and relevancy question, the Clerk is asking this Court to ignore the procedure which Congress established and which the Clerk has insisted that the United States follow in seeking the telephone records. [Response To Motion To Quash, June 5, 1981, at 5]

Even if the District of Columbia court found that it should independently reconsider the issues raised and ruled upon by Judge Pollak, the Government contended, no new arguments had been offered by the Clerk which would justify a different result. According to the Government, the Cannon case relied on by the Clerk was "clearly distinguishable" from the one at bar:

The Cannon court was concerned that the Senate had been unable to reach a consensus on the propriety of using staff in campaigns. In our case the question, if it is a political one, has been resolved by the House and the Congress as a whole by passage of resolution and enactment of the resolution into law. The statute which creates the "strictly official" limitation on phone calls which may be paid for from the contingent fund is 2 U.S.C. § 46(g). There is not a "Lack of Statutory, Administrative and Case Law" as concerned the Cannon court. . . . Here the House and Senate have grappled with the issue and decided to put in the limitation which was not always there. See Plaintiff's Memorandum on the Viability of 2 U.S.C. § 46(g) and the effect of 2 U.S.C. § 57, attached as Exhibit 7 to the Clerk's Memorandum. To analogize Cannon to our case, it is as if 1) The Committee finally decided that staffers could not be paid for campaign work, 2) The limitations were enacted into statute and 3) a Senator falsely certified to the Clerk that his staffer was entitled to salary for official duties when in fact the Senator knew the staffer's time had been on the campaign and not other congressional duties. The Con

gress by enacting the statute has committed to the Courts
the authority to make the distinctions of whether particu-
lar calls were official. This is not an unusual task for the
judiciary. The legal standard of "strictly official" and the
congressional policy determination of what type of calls
should be paid for by the public exist in this case where as
the Court found they did not in Cannon . . . There is a ju-
dicially discoverable and manageable standard in this case.
[Id. at 6-7]

On June 17, 1981, the Clerk filed a reply memorandum disputing the Government's contentions that: (1) the District of Columbia court was barred by the "law of the case" doctrine from deciding the issues raised by the motion to quash; and (2) the Cannon case was distinguishable.

Initially taking issue with the Government's characterization of the facts of the case, the Clerk argued that: (1) the Government had never produced evidence to support the issuance of a subpoena for a coordinate branch's records; (2) the records sought were internal House records, not "simply monthly bills generated by the telephone company," since they contained monthly certifications provided by Rep. Eilberg to the Clerk; (3) since the Government admitted that it was already in possession of the records, it was abusing the subpoena process of the court; (4) despite its assertion to the contrary, the Government was in fact seeking to put into question calls made by the Congressman; and (5) House Resolution 10, under which the finding of materiality and relevancy was sought, did not require that the determination be sought from the Pennsylvania court rather than the District of Columbia forum.

Turning to the "law of the case" doctrine, the Clerk argued first that it was inapplicable because Judge Pollak's decision did not meet the necessary standards of finality and appealability:

At the time of Judge Pollak's decision no subpoena had
been served on the Clerk. Not being a party to the action
then pending before Judge Pollak the Clerk was unable to
even raise all of his concerns regarding the subpoena let
alone obtain a final decision from which he could appeal.
One indicia of the finality of a decision is its appealability.
28 U.S.C. § 1291. Again, since the Clerk was not a party to
the action pending in Philadelphia he could not obtain ap-
pellate review. To imbue a non-appealable order with the
high degree of finality necessary to invoke the law of the
case doctrine would procedurally deprive a litigant of the
right of appellate review of a district court's decision. The
"law of the case doctrine" was never intended to operate
in such a fashion, particularly with respect to a coordinate
branch of government. [Reply Memorandum of the Clerk
of the House of Representatives, June 17, 1981, at 5]

Second, the Clerk asserted that the Government was wrong in its contention that the doctrine barred relitigating the propriety of the subpoena. According to the Clerk, the doctrine was purely discretionary and was not an iron-clad rule requiring foreclosure of the issue.

Focusing next on the Cannon case, the Clerk termed the Government's assertion that it was clearly distinguishable "myopic" and "wholly untenable." He noted:

The theory of Plaintiff's claim in that suit was the same as
the United States Attorney's here, namely that
"[a]ppellant theorizes that Senator Cannon's authorization
of salary payments to Sobsey while the aide was not per-
forming official legislative and representational duties'
made out an actionable false claim," 642 F.2d at 1376, and
that "Senator Cannon was unaware of the nature of his
assistants' activities, yet authorized these salary pay-
ments." [Id.] In fact, the plaintiffs in each case have exact-
ly the same theory of liability. [Id. at 7]

The Clerk concluded:

The United States Attorney next asserts that the lack of a consensus within the Senate on standards for campaign work by staff has been resolved in the House with respect to telephone use through adoption of 2 U.S.C. § 46(g) and the so-called "strictly official" standard. First, as the Cannon Court stated, and which the Response blithely ig

nores:

Even assuming, as we fairly may, that the funds
appropriated were intended solely to compensate
staffers for performance of their 'official' duties,
we are left with the perplexing question whether
campaign work is official activity.

642 F.2d at 1380.

The Cannon Court assumed an "official" standard and determined it lacked the tools to resolve the question. Moreover, there is no evidence whatsoever to which the United States Attorney can point evidencing that the House and Senate "have grappled" with what constitutes official telephone use, either in the legislative history of 2 U.S.C. § 46(g), or elsewhere. The United States Attorney simply begs the question by stating that the "strictly official" standard has been adopted, without a hint of how a court will apply that standard to legislative telephone use. The adoption of the statute relied upon by the United States Attorney is indistinguishable from the standard of "official" assumed to govern appropriated monies and fails to advance the political question analysis established by Cannon. [Id. at 8-9]

On June 23, 1981, Rep. Eilberg filed a motion to intervene in the motion to quash the subpoena and a separate motion to quash. In the latter, he incorporated by reference the arguments made by the Clerk and further asserted that the compelled production of the documents pursuant to the subpoena would violate the Speech or Debate Clause.

Also on June 23, the Government filed a response to Rep. Eilberg's motion in which it incorporated its response to the Clerk's motion to quash. The Government further maintained that Rep. Eilberg's Speech or Debate Clause argument was without merit be

cause the Clause provided only a testimonial and use privilege and immunity as to legislative acts, "rather than a cloak of secrecy". Citing In re Grand Jury Investigation, 587 F.2d 589, 597 (3rd Cir. 1978), the Government asserted that the privilege as applied to the records and third-party testimony sought in this case "is one of nonevidentiary use, not of nondisclosure."

Status-The case is pending in the U.S. District Court for the Eastern District of Pennsylvania and the U.S. District Court for the District of Columbia.

The complete text of the October 22, 1980 opinion of the district court is printed in the "Decisions" Section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

III. The Right of Members of Congress to Sue (Standing) McClure v. Reagan (formerly Carter)

No. 81-186-ATX (U.S. Supreme Court)

On September 25, 1979, U.S. Senator James A. McClure of Idaho filed suit in the U.S. District Court for the District of Idaho against James Earl Carter, President of the United States, and J. Stanley Kimmitt, Secretary of the U.S. Senate, challenging the nomination and confirmation of U.S. Representative Abner J. Mikva of Illinois as a judge of the U.S. Court of Appeals for the District of Columbia Circuit. The complaint sought a declaration that Rep. Mikva was constitutionally ineligible for appointment as a circuit court judge. The action also sought to enjoin defendant Kimmitt from communicating to the President the results of the Senate's vote of confirmation of Rep. Mikva as a circuit court judge. Jurisdiction was alleged to exist under 28 U.S.C. §§ 1331 (federal question) and 2201 (declaratory judgment).

Count one of the complaint alleged that while Rep. Mikva was a Member of the House, the salary of the Federal judiciary was increased under section 225 of the Federal Salary Act of 1967 (2 U.S.C. §§ 351-361), as adjusted by section 205(a)(1) of the Executive Salary Cost-of-Living Adjustment Act (28 U.S.C. § 461). Subsequently, during the same Congressional term, the President nominated Rep. Mikva to a civil office (a circuit court judgeship) allegedly in violation of the Ineligibility Clause of the U.S. Constitution. The Ineligibility Clause provides that "no Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such a time; and no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office." [art. I, § 6, cl. 2]

Count two requested that pursuant to Rule 65 of the Federal Rules of Civil Procedure defendant Kimmitt be prevented from notifying the President of the Senate's confirmation of Rep. Mikva as judge of the circuit court of appeals.

During the confirmation process involving Rep. Mikva, Senator McClure and a number of his colleagues argued against his appointment because they felt he was philosophically unsuited for the appeals court, as well as constitutionally ineligible for appointment

« PreviousContinue »