T1a B45 Legislative Privilege 2 Of 2 Fdr- Entire Contents- 3 Legal Treatises- 1st Pgs For Ref 453

LEXSEE 1973 U.S. App. LEXIS 7555 Richard M. NIXON, President of the United States, Petitioner v. The Honorable John J. SIRICA, United States District Judge, Respondent and Archibald Cox, Special Prosecutor, Watergate Special Prosecution Force, Party in Interest. UNITED STATES of America, Petitioner v. The Honorable John J. SIRICA, Chief Judge, United States District Court for the District of Columbia, Respondent and Richard M. Nixon, President of the United States, Party in Interest. In re GRAND JURY PROCEEDINGS Nos. 73-1962,73-1967,73-1989 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 759 U.S. App. D.C. 58; 487 F.2d 700; 1973 U.S. App. LEXIS 7555; 19A.L.R. Fed. 343 September 11,1973, Argued October 12,1973, Decided

SUBSEQUENT HISTORY: [**1] As amended October 12, 1973. As amended October 25, 1973.

JUDGES: MacKinnon, Circuit Judge, concurring in part and dissenting in part. Wilkey, Circuit Judge, dissenting. OPINIONBY: PERCURIAM OPINION: [*704] This controversy concerns an order of the District Court for the District of Columbia entered on August 29, 1973, by Chief Judge John J. Sirica as a means of enforcing a grand jury subpoena duces tecum issued to and served on President Richard M. Nixon. The order commands the President, or any subordinate official, to produce certain items identified in the subpoena so that the Court can determine, by in camera inspection, whether the items are exempted from disclosure by evidentiary privilege, nl

nl The District Court's order is reproduced here in its entirety: This matter having come before the Court on motion of the Watergate Special Prosecutor made on behalf of the June 1972 grand jury of this district for an order to show cause, and the Court being advised in the premises, it is by the Court this 29th day of August, 1973, for the reasons stated in the attached opinion, Ordered that respondent, President Richard M. Nixon, or any subordinate officer, official or employee with custody or control of the documents or objects listed in the grand jury subpoena duces tecum of July 23, 1973, served on respondent in this district, is hereby commanded to produce forthwith for the Court's examination in camera, the subpoenaed documents or objects which have not heretofore been produced to the grand jury; and it is Further Ordered that the ruling herein be stayed for a period of five days in which time respondent may perfect an appeal from the ruling; and it is Further Ordered that should respondent appeal from the ruling herein, the above stay will

LEXSEE 1983 U.S. App. LEXIS 25630 MARYANN PAISLEY, APPELLANT v. CENTRAL INTELLIGENCE AGENCY et al. No. 82-1799 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 229 U.S. App. D.C. 372; 712 F.2d 686; 1983 U.S. App. LEXIS 25630 March 2,1983, Argued July 22,1983

SUBSEQUENT HISTORY: [**1] Petition for Rehearing Granted January 3, 1984. Vacated (In Part) January 3, 1984. Reported at: 724 F.2d 201. PRIOR HISTORY: Appeal from the United States District Court for the District of Columbia.

COUNSEL: Eric R. Glitzenstein, Alan B. Morrison, Cornish F. Hitchcock, Katherine A. Meyer, for Appellant. Michael J. Ryan, Assistant United States Attorney, Stanley S. Harris, United States Attorney, Royce C. Lamberth, John O. Birch, R. Craig Lawrence, Assistant United States Attorneys, for Appellees. JUDGES: Wright and Wilkey, Circuit Judges, and Bonsai, * Senior District Judge. Opinion for the court filed by Circuit Judge Wright. * Of the United States District Court for the Southern District of New York, sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V 1981). OPEMIONBY:

WRIGHT

OPINION: [*688] WRIGHT, Circuit Judge: In this action arising under the Freedom of Information Act (FOIA or Act), nl appellant appellant Maryann Paisley seeks information from the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) concerning the 1978 shooting death of her husband, a former CIA official. These agencies refuse to release 58 documents [**2] that are responsive to appellant's request, on grounds that the documents constitute congressional records not subject to FOIA n2 or, alternatively, that they are protected from disclosure by Exemption 5 of the Act. n3 Additionally, the CIA claims that certain documents must also be withheld pursuant to Exemptions 1 n4 and 3 n5 of FOIA. The District Court granted partial summary judgment in favor of the CIA and the FBI, finding that release of these disputed documents was barred by the Speech or Debate Clause of the Constitution, n6 as well as by the Act's Exemption 5. [*689] Because the Speech or Debate ") Clause is inapposite to this case and more thorough ) consideration of the applicability of various FOIA exemptions to these agency records is necessary, we reverse and remand this case to the District Court for further proceedings in accordance with this opinion.

nl 5 U.S.C. § 552(1982). n2 The Act requires that an agency make "agency records" available to the public upon reasonable request. See 5 U.S.C. § 552(a) (3) & (4) (B). Since Congress is not an "agency" for

LEXSEE 1984 U.S. App. LEXIS 26776 MARY ANN PAISLEY, APPELLANT v. CENTRAL INTELLIGENCE AGENCY et al. SENATE SELECT COMMITTEE ON INTELLIGENCE, APPLICANT IN INTERVENTION No. 82-1799 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 233 U.S. App. D.C. 69; 724 F.2d 201; 1984 U.S. App. LEXIS 26776 January 3,1984

PRIOR HISTORY: [**1] On Motion of the Senate Select Committee on Intelligence to Intervene and on Petitions of Appellees and Intervenor for Rehearing. COUNSEL: Michael Davidson, Senate Legal Counsel, M. Elizabeth Culbreth, Deputy Senate Legal Counsel, and Morgan J. Frankel, Assistant Senate Legal Counsel, were on the motion of the Senate Select Committee on Intelligence to Intervene and on the petition of Intervenor for Rehearing. Stanley S. Harris, United States Attorney at the time the petition was filed, and Royce C. Lamberth, Michael J. Ryan, and R. Craig Lawrence, Assistant United States Attorneys, were on the Petition of Appellees for rehearing. Eric R. Glitzenstein and Alan B. Morrison were on appellant's opposition to the motion to intervene. JUDGES: Wright and Wilke, Circuit Judges, and Bonsai, * Senior District Judge. * Of the United States District Court for the Southern District of New York, sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V 1981). OPBMIONBY:

PERCURIAM

OPINION: [*202] Opinion Per Curiam. On July 22, 1983, this court issued an opinion in Paisley v. Central Intelligence Agency, 229 U.S. App. D.C. 372, 712 F.2d 686 (D.C. Cir. 1983). [**2] The case involved Freedom of Information Act (FOIA) requests directed to the CIA and FBI for information concerning the mysterious death of appellant's husband, a former CIA official. We held that a number of the documents sought were "agency records" and therefore subject to FOIA, despite the fact that they had some connection with certain Senate hearings concerning her husband's death. Only after our July 22 opinion was issued did the Senate Select Committee on Intelligence (hereinafter the Committee) move to intervene in the case pursuant to 2 U.S.C. § 288l(&) (1982). The Committee also filed a petition for rehearing on two issues we decided in our opinion: (1) the correct application of the legal standards contained in Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339 (D.C. Cir. 1978), vacated in part on other grounds, 197 U.S. App. D.C. 25, 607 F.2d 339, 367 (D.C. Cir. 1979), cert, denied, 445 U.S. 927, 100 S. Ct. 1312, 63 L. Ed. 2d 759 (1980), to FBI Documents Nos. 26 and 27, see 712 F.2d at 694 n.32, and (2) the necessity of adjudicating the Speech and Debate Clause issue, see [**3] 712 F.2d at 696-697. We have extremely serious doubts about the wisdom of granting post-judgment intervention to a nonparty for purposes of contesting decisions reached by this court, nl To be sure, the Committee has an interest in the subject matter of the case, since the [*203] documents

CONGRESSIONAL PAPERS AND JUDICIAL SUBPOENAS David Kaye* INTRODUCTION For at least a century, prosecutors, criminal defendants, and ivate litigants have sought, subpoena in hand, to wrest papers Congress. By and large, Congress has grudgingly complied. ft the few instances in which Congress has withheld the subinformation, the question of congressional privilege was conclusively litigated.1 Nevertheless, recent assertions of an itly unrestricted and unreviewable legislative discretion to to produce subpoenaed papers have been said to reflect ient and invariable precedent."2 To the extent that this privilege rests on historical claims,3 ful scrutiny of these precedents is necessary. Such an exlation is important both as a matter of historical accuracy and an unduly broad interpretation of congressional privilege es serious risks. Indiscriminate secrecy on the part of the putive branch is a recognized threat to democratic institutions4 ! legislative secrecy can be assailed on the same grounds.5 Conprivilege may prevent criminal prosecutions if Congress

gft*. ' Member Oregon Bar; J.D. 1972, Yale Law School; A.M. 1969, Harvard shy; S.B. 1968, Massachusetts Institute of Technology. See notes 66-73, 83-91 & accompanying text infra. Nixon v. Sirica, 487 F.2d 700, 772 (D.C. Cir. 1973) (Wilkey, J., dissentsi A purely historical analysis of congressional claims of privilege cannot ely define the privilege constitutionally invested in Congress. Cf., e.g., erdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349; 01, 411-14 (1974); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 33 ft). But history is not irrelevant to constitutional construction. Id. A further discussing the constitutional underpinnings of Congress* claims and the scope of Congress' privilege over its papers is being prepared by this * See, eg., C. BARKER & M. Fox, CLASSIFIED FILES: THE YELLOWING PAGES 72); V. MARCHETTI & J. MARKS, THE CIA AND THE CULT OF INTELLIGENCE ). 5 See, e.g., 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION OF at 260 (1911); 3 J. ELIOT, THE DEBATES IN THE SEVERAL STATE CONVENi ON THE ADOPTION OF THE FEDERAL CONSTITUTION 170 (1936).

57

MAY-19-03 03:21PM

FROM-UCLA LAW LIBRARY

3102063680

T-080

P.23/41

F-683

CONGRESSIONAL PAPERS, JUDICIAL SUBPOENAS, AND THE CONSTITUTION

David Kaye* INTRODUCTION For at least a century, and with increasing frequency in recent years, grand juries, public prosecutors, criminal defendants, and private litigants have sought, subpoena in hand, to wrest papers from Congress.1 By and large, Congress has honored these subpoenas.2 Yet, even in the course of compliance, Congress often * Associate Professor of Law, Arizona Slate University; J.D. 1972, Yale Law School; A.M. 1969, Harvard University; S.B. 1968, Massachusetts Institute of Technology. 1 Many of these incidents are recounted in Kaye, Congressional Papers and Judicial Subpoenas, 23 UCLA L. REV. 57 (1975) [hereinafter cited as Congressional Papers]. The word "Congress" will be used in this paper to refer to both houses of Congress. 2 The Congressional Record is replete with resolutions authorizing compliance. See Congressional Papers, note 1 supra; Cox, Executive Privilege, 122 U. PA. L. REV. 1383, 1393-95 (1974). Congressional responses to subpoenas duces tecura arising since the publication of these articles include H-R. Res. 1429, 94th Cong., 2d Sess., 122 CONG. REC. H7822 (daily ed. July 27, 1976) (grand jury subpoena); H.R. Res. 1384-85, id. at H6991-92 (daily ed. June 29, 1976) (grand jury subpoenas); H.R. Res. 1273-74, id. at H5500-01 (daily ed. June 9, 1976) (grand jury subpoenas); H.R. Res. 1233, id. at HS169-70 (daily ed. June 2, 1976) (grand jury subpoena); H.R. Res, 1122, id, at H2617 (daily ed. Mar. 31, 1976) (order for production in civil case); H.R. Res. 1082, id. at Hi 101-02 (daily ed. Mar. 9, 1976) (subpoenas in civil case); H.R. Res. 1001, id- at H515 (daily ed. Jan. 19, 1976) (trial subpoena in criminal case); S. Res. 336, 94th Cong., 1st Sess., 121 id. at S23067 (daily ed. Dec. 19, 1975) (subpoenas in civil case); H.R. Res. 947-, id. at H13161 (daily ed. Pec. 19, 1975) (order for production in civil case); H.R. Res. 946, id. at H13160-6I (daily ed. Dec. 19, 1975) (trial subpoena in criminal case); S. Res. 320, id. at S21555-56 (daily ed. Dec. 9, 1975) (subpoena in civil case); H.R. Res. 903, id. at H1I877-78 (daily ed. Dec. 4, 1975) (subpoena in civil case); H.R. Res. 819, id. at HI0278 (daily ed. Oct. 23, 1975) (grand jury subpoena); S. Res. 273, id, at S17528 (daily ed. Oct. 3, 1975) (grand jury subpoena); H.R. Res. 717, id. at H8769-7O (daily ed. Sept. 17, 1975) (grand jury subpoena); H.R. Res. 709, id. ai H8621 (daily cd. Sept. 10, 1975) (trial subpoena in criminal case); H R- Res. 663, id. at H7946-47 (daily ed. July 31, 1975) (grand jury subpoena); H.R- Res. 519, id. at H5178 (daily ed. June 10, 1975) (trial subpoena in criminal case); S. Res. 105-08 & 170, id. at S3561-63 (daily ed. Mar. 11, 1975) & S9094 (daily ed. May 22, 1975) (irial subpoenas in criminal case); H.R. Res. 156, id. at H671 (daily ed, Feb. 6, 1975) (grand jury

523

.1 .a

VOLUME 86

MAY 1973

NUMBER 7

HARVARD LAW REVIEW LEGISLATIVE PRIVILEGE AND THE SEPARATION OF POWERS Robert ]. Reinstein * and Harvey A. Silverglate ** Professor Reinstein and Mr. Silverglate argue that the scope of the Constitution's speech or debate privilege, article I, section 6, must be defined historically, but not by static criteria derived from the clause's ancient judicial origins. After tracing the dynamic evolution of the privilege as a means of preserving legislative independence, they conclude that the clause's current scope must encompass all legitimate contemporary functions of a legislature in a system embracing a separation of powers. The authors argue that such a functional perspective requires tliat the privilege be interpreted broadly to prevent intrusions by the executive branch into such legislative activities as the publication of information for congressional colleagues and the public, the acquisition of information for such purposes, and the decisionmaking processes preparatory to such legislative functions, although not into legislative intervention before executive agencies. The functional independence of the legislative branch and the political neutrality of the judicial branch depend upon such a broad definition in executive-motivated suits. But the authors contend that such functional considerations indicate that the clause should be given a narrow scope in private civil suits brought against congressmen or congressional committees, especially those involving constitutional rights. Finally, because recent Supreme Court decisions have not afforded legislators adequate protection, the authors outline several legislative options by which Congress could preserve its independence in the system of separate powers.

* Associate Professor of Law, Temple University; B.S., Cornell, 1965; JJX, Harvard, 1968. **Member, Massachusetts Bar; A.B., Princeton, 1964; J.D., Harvard, 1967. The authors were counsel for Senator Gravel in his legislative privilege case, which is discussed extensively in this Article. We cannot overstate the contribution' made to this Article by Charles L. Fishman, who was Senator Gravel's chief counsel. Mr. Fishman's ideas pervade this piece and by rights he should be listed as a co-author, but he declined because he did not participate in the actual writing. We of course absolve Mr. Fishman of all responsibility for the final product. The research assistance of Ralph Kates and Gerald McFadden is also gratefully acknowledged.

HeinOnline — 86 Harv. L Rev. 1113 (1972-1973)

MAY-19-03 03:12PM

FROM-UCLA LAIN LIBRARY

3102063680

CONGRESSIONAL PAPERS AND JUDICIAL SUBPOENAS David Kaye* INTRODUCTION For at least a century, prosecutors, criminal defendants, and >rivate litigants have sought, subpoena in hand, to wrest papers torn Congress. By and large, Congress has grudgingly complied. & the few instances in which Congress has withheld the sub>oenaed information, the question of congressional privilege was lot conclusively litigated.1 Nevertheless, recent assertions of an ipparently unrestricted and unreviewable legislative discretion to lecline to produce subpoenaed papers have been said to reflect ancient and invariable precedent."2 To the extent that this privilege rests on historical claims,3 areful scrutiny of these precedents is necessary. Such an exjnination is important both as a matter of historical accuracy and Because an unduly broad interpretation of congressional privilege oses serious risks. Indiscriminate secrecy on the part of the xecutive branch is a recognized threat to democratic institutions4 nd legislative secrecy can be assailed on the same grounds.6 Concessional privilege may prevent criminal prosecutions if Congress * Member Oregoh Bar; J.D. 1972, Yale Law School; AM, 1969, Harvard Jniversity; S.B, 1968, Massachusetts Institute of Technology. * See notes 66-73, 83-91 & accompanying text infra. * Nixon v. Sirica, 487 F.2d 700, 772 (D.C. Cir. 1973) (Wilkey, J., dissemig). 3 A purely historical analysis of congressional claims of privilege cannot ampletely define the privilege constitutionally invested in Congress. C}., e.g.t jnsierdam, Perspectives on ihe Fourth Amendment, 38 MINK. L. REV. 349, ?6~401, 411-14 (1974); Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 33 1941). But history is not irrelevant to constitutional construction. Id, A further ruck discussing the constitutional underpinnings of Congress' claims and the roper scope of Congress* privilege over its papers is being prepared by ibis ilhor. « See,e.g., c. BA»KE» & M. Fox, CLASSIFIED FII.ES: THE YELLOWING PAGES (1972); V. MAHCHETTI & J. MARKS, THE CIA AND THE CULT op INTELLIGENCE L974). 6

See, e.g., 1 M. FARRAND, RECORDS OF THE pEDEJUI. CONVENTION OF

'87, at 260 (1911); 3 J. £uor, THE DEBATES IN THE SCVERAL STATE CONVENES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 170 (1936).

57

T-080

P.02

F-683