ISSUE OF PRIVILEGE AND IMMUNITY

Senator JAVITS. Mr. Chairman, while the Senator is gathering his thoughts, does the Senator feel it would be of any use to ask the Department to brief, because the question has arisen in connection with Senator Gravel, the issue of privilege and immunity in this connection? This may have a very great bearing on the attitude of the President of what will be sent up here especially on the matters which Mr. Stevenson is referring to.

Senator CASE. You mean in the present situation?

Senator JAVITS. What is our present position? How much is law and how much is the Constitution and I hope it would be given now. If you do that, Mr. Stevenson, I would hope you would do it objectively, and not tied to the Grave case because that would not help us, that is sub judice; we don't know how it will come out.

Mr. STEVENSON. Certainly we would be glad to do that.
Senator JAVITS. Certainly it would be useful.

Senator CASE. I would be happy, if the Chair has no objection, that it be made a request of the committee.

(The information referred to follows:)

CONGRESSIONAL PRIVILEGES AND IMMUNITIES REGARDING DISCLOSURE OF CLASSIFIED INFORMATION

(Submitted by Department of State)

Senator Javits has requested that the Department of State set forth its view of the legal issues involved in the application of Congressional privileges and immunities to situations involving disclosures of classified information. The Department believes that there is a degree of uncertainty as to the application of those privileges and immunities in various circumstances which might arise and that, as the Senator has suggested, this is a factor which should be taken into account in framing mutually agreeable arrangements for the transmission to Congress of international agreements.

Employees of the Executive Branch who are authorized to receive classified information are subject to the provisions of the Espionage Act of 1917, as amended (18 U.S.C. §§ 791–794, 2388, 3241 (1970)). In particular, 18 U.S.C. § 793 provides in part as follows:

"(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, [etc.] relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, wilfully communicates, delivers, [or] transmits ... the same to any person not entitled to receive it...; or

"(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, [etc.] relatin gto the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its (sic) trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer

"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

Section 1 of Executive Order 10501, as amended, provides for classification of information which "requires protection in the interests of national defense." In addition, 50 U.S.C. § 783 (1970) makes it unlawful for any officer or employee of the United States or of any agency, department, etc., thereof, to communicate classified information to a representative of a foreign government, unless specifically authorized to do so. And Section 19 of Executive Order 10501, as amended, provides as follows:

"The head of each department and agency is directed to take prompt and stringent administrative action against any officer or employee of the United States, at any level of employment, determined to have been knowingly responsible for any release or disclosure of classified defense information or material except in the manner authorized by this order, and where a violation of criminal statutes may be involved, to refer promptly to the Department of Justice any such case.”

There thus exist clear criminal and administrative sanctions applicable to officers and employees of the Executive Branch for any unauthorized disclosure of classified information.

The Espionage Act is not, of course, limited by its terms to officers and employees of the Executive Branch; its application is general. As to Members and employees of Congress, however, there is some uncertainty as to the enforceability of the Act under various circumstances. Much of that uncertainty flows from Article I, Section 6, Clause 1 of the Constitution, which provides in part as follows:

"The Senators and Representatives ... shall in all Cases, except Treason. Felony and Breach of the Peace, be Privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

A question arises as to whether the criminal sanctions provided by the Espionage Act would be effective in the event of Congressional disclosures of classified information, in light of the Constitutional immunities of Members of Congress. The answer, in brief, is that the interaction between the statute and the constitutional provision is far from clear.

The phrase of the cited provision dealing with "privilege from arrest" is not the source of the difficulty. It is clear that that phrase

"*** applies only to arrests in civil suits, which were still common in this country at the time the Constitution was adopted. It does not apply to . . . arrest in any criminal case. The phrase 'treason, felony or breach of the peace' is interpreted to withdraw all criminal offenses from the operation of the privilege." Legislative Reference Service, The Constitution of the United States of America-Analysis and Interpretation (1964 ed.. based on 1952 Corwin ed.), Sen. Doc. 39, 88th Cong., 1st Sess. at 131 (1964). See also Long v. Ansell, 293 U.S. 76, 82-83 (1934), Williamson v. United States, 207 U.S. 425, 446 (1908).

Willoughby states that

"The words 'treason, felony, and breach of the peace' have been construed to mean all indictable crimes." 1 Willoughby, The Constitutional Law of the United States $342, 2d ed. (1929).

The difficult question arises under the second part of the clause: “and for any Speech or Debate in either House, they shall not be questioned in any other Place." The cases applying this provision have for the most part been civil cases in which Members of Congress have asserted their constitutional privilege as a defense against actions for damages, notably for libel. While the applicability of the reasoning in those cases to situations involving criminal charges can be questioned, they do provide a useful idea of the general scope and nature of the constitutional privilege.

A key case on the subject is the Supreme Court decision in Kilbourn v. Thompson, 103 U.S. 168 (1880), which involved an action for false imprisonment against the Sergeant-at-Arms of the House of Representatives and certain members of the House. The case arose from the imprisonment of the plaintiff by the Sergeant-at-Arms, acting at the order of a House committee which had found 'the plaintiff in contempt for refusal to answer questions in connection with certain financial matters. The Court held that the investigation in which the committee had been engaged at the time was judicial in nature and thus beyond the authority of the House, and that the plaintiff was therefore entitled to proceed against the Sergeant-at-Arms. As to the Congressmen, however, the Court held that they were protected from any liability by the Speech and Debate Clause.

Noting that the conduct in question had not consisted of a "speech or debate" per se, the Court quoted wtih approval from an earlier opinion of the Supreme Court of Massachusetts in Coffin v. Coffin, 4 Mass. 1 (1808), which involved a similar provision in the Constitution of the State of Massachusetts. The quoted passage contained the following language:

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"These privileges are ... secured . . . to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecution, civil or criminal. I, therefore, think the [provision] ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote to the making of a report, and to every other act resulting from the nature and in the execution of the office. And I would define the [provision] as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the Rules of the House, or irregular and against their rules. . . I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber." 103 U.S. at 203-204. Kilbourn thus tends to support the view that the privilege flowing from the clause is to be construed to include a broad range of legislative activities not strictly covered by the term "speech or debate." Later cases suggest that it is difficult to challenge the application of the privilege on the grounds that the actions in question were irrelevant or immaterial to matters before the Congress or were carried out with an improper motive. Tenney v. Brandhove, 341 U.S. 367, 377 (1951); Cochran v. Couzens, 42 F2d 783 (D.C. Cir. 1930) cert. den., 282 U.S. 874 (1930); Oppenheim, "Congressional Free Speech," 8 Loyola L. Rev. 1, 20, 23 (1958). Further, Kilbourn itself indicates that the privileges can apply even where the actions in question are ultra vires the authority of Congress under the Constitution. 103 U.S. at 190-205. On the other hand, it has been stated by way of dictum that the publication of material by a Member of Congress does not become privileged solely by virtue of the fact that the material was originally contained in a speech before Congress, the theory being that the publication is a separate act. Long v. Ansell, 69 F2d 836, 389 (D.C. Cir. 1934), aff'd 293 U.S. 76 (1934).

It may be argued that the provisions of the Espionage Act could be construed as a limitation on--or rather a partial Congressional waiver of the legislative privilege for certain specific purposes. However, the Supreme Court's ruling in Tenney v. Brandhove, 341 U.S. 367 (1950), suggests that the courts would be reluctant to adopt such an interpretation. That case concerned a suit against members of a committee of the California legislature, in which the plaintiff sought damages for activities of the committee, including the conduct of hearings and the publication of reports, which he alleged were intended to "intimidate and silence" him and thus subject him to a deprivation of his constitutional rights in violation of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985 (3) (1970). The Court held that that Act could not be so construed as to limit the freedom of State legislators acting within their sphere of authority. Justice Frankfurter, writing for the Court, stated the point in the following terms:

"We cannot believe that Congress-itself a staunch advocate of legislative freedom-would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us." 341 U.S. at 376. The more recent case of United States v. Johnson, 383 U.S. 169 (1966), presented a similar question in the specific context of a criminal case. There, a former Congressman was charged with having received bribes in exchange for the performance of certain acts, including the delivery of a speech on the floor of the House, in violation of a federal statute concerning conspiracy to defraud the United States, 18 U.S.C. § 371 (1970). The Supreme Court referred to Kilbourn and Tenney as indicating "that the legislative privilege will be read broadly to effectuate its purposes," but noted that neither of those cases dealt"with a criminal prosecution based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests." 383 U.S. at 180. Nevertheless, the Court held that the Speech and Debate clause extended at least far enough to prevent such a speech from being the basis for a criminal charge against a Member of Congress.

The Court in Johnson was careful to state its holding in narrow terms: "Our decision does not touch a prosecution which, though as here founded on a criminal statute of general applicability, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. And, without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possi

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bly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members." Id. at 185.

Nor did the Court consider the availability of legislative as opposed to criminal-sanctions by which Congress might regulate the conduct of its members. See Note, "The Bribed Congressman's Immunity from Prosecution," 75 Yale L.J. 335, 347-348 (1965).

The cases thus leave a number of uncertainties as to the impact of legislative privilege on the effectiveness of the criminal sanctions in the Espionage Act and on other forms of sanction which might be available. While there has been a tendency in civil cases to construe the privilege as applying to a broad range of conduct relating generally to legislative functions, there has also been a recognition that charges of criminal violation involving abuse of the legislator's position may call for a narrower view of the privilege.

Similarly, although the disclosure of defense information to unauthorized persons, especially in a manner other than the delivery of a speech in Congress, should be considered beyond the bounds of the privilege, some will argue that it is done pursuant to the responsibility of a legislator as a representative of the people.

Finally, there are uncertainties as to how the Espionage Act would apply to actions of Congressional employees as distinguished from members of Congress. Kilbourn seems to make it clear that legislative privilege does not protect employees of Congress merely because they are acting at the orders of members of Congress. However, the liability of the Sergeant-at-Arms in that case turned on the fact that the order pursuant to which he arrested the plaintiff was ultra vires and that the imprisonment was therefore unlawful. Had the order been lawful, the Sergeant-at-Arms would presumably not have been liable, not on the grounds that the privilege would then have applied to him, but because his action would have been entirely lawful. It is possible that a similar result would obtain if a Congressional employee disclosed classified information at the direction of a member or committee of Congress, especially if the court believed the action pertained to matters within the general constitutional powers of Congress and the mandate of the Committee involved.

In summary, then, there are a number of uncertainties in assessing the effect of congressional immunity upon the operation of the sanctions established by the Espionage Act in relation to unauthorized disclosure of classified information. These uncertainties are compounded by the fact that enforcement of the provisions of that Act to prevent "leaks" of information is difficult at best and could very easily become a source of friction between the Congress and the Executive Branch. See Bishop, "The Executive's Right of Privacy: An Unresolved Constitutional Question," 66 Yale L.J. 477, 486-487, 490 (1957). These considerations have a considerable bearing on the whole issue of providing certain sensitive information to Congress, and it seems unlikely that there is any easy way to overcome the legal difficulties, Id., passim. Rather, the uncertainties reflected in the foregoing discussion are factors which must be taken into account by both the Executive and Legislative Branches in the continuing efforts of the two branches to arrive at mutually satisfactory accommodations through the political process as specific questions arise.

The views expressed in this memorandum are solely those of the Office of the Legal Adviser, Department of State, and are not to be construed as reflecting the views of the Department of Justice.

EXECUTIVE ORDERS DEFINING ARRANGEMENTS

Senator CASE. On your suggestion about a proposed cooperative arrangement, would you feel that when this matter had been fully discussed that the President would enter Executive orders defining these arrangements and putting them in the Federal Register?

Mr. STEVENSON. Certainly that is one of the alternatives that could be considered. We indicated in my statement that the arrangements could be made public, and that would certainly be one way of doing it.

Senator CASE. You anticipate no difficulty, assuming that this might be done? In other words, there is no block in the Executive mind about it?

Mr. STEVENSON. Well, as I said, we really do not have a detailed position on this, but it is clear we are willing to consider anything, really.

HAS MATTER BEEN DISCUSSED AT HIGHEST LEVELS?

Senator CASE. Has this matter been discussed at the highest levels, to use a euphemism?

Mr. STEVENSON. The general approach has been discussed within the administration.

Senator CASE. At the highest levels?

Mr. STEVENSON. At high levels, yes.

Senator CASE. That doesn't quite get there, does it?

Mr. STEVENSON. Well, yes.

Senator CASE. It does at the highest?

WOULD ARRANGEMENTS EXTEND TO ALL INTERNATIONAL AGREEMENTS?

Would these arrangements extend to all international agreements in some fashion?

Mr. STEVENSON. Certainly. Of course, they wouldn't have to cover the ones we are publishing already. All would be covered, sure.

Senator CASE. Some you are not publishing even though the United Nations requires you to publish all international agreements? Mr. STEVENSON. They would extend to all international agreements.

ARE THERE SOME MATTERS CONGRESS CAN'T KNOW ABOUT?

Senator CASE. In one fashion or another. You don't stand by the suggestion that some matters are of such high classification that we can't know about them?

Mr. STEVENSON. Well, as I say, this is one of the questions we have to discuss. I mean, there may be some areas where we would have to have special ways of dealing with the subject. I think I can say, Senator, in the past, where there have been conflicts with respect to a particular agreement these have always been resolved one way or another. We have never had a case of the President invoking executive privilege to refuse; it has been worked out. I cannot tell you right now that there wouldn't be some reservation of Presidential discretion of the President's ultimate power to decide what he wanted to do in a particular case. But I hope that through these procedures that we would work out that we would never come to such a situation, that you, in fact, would be satisfied by the way we handled the case so that we wouldn't have a conflict between the Executive and Congress on a particular matter.

EXTENT OF INFORMATION TO WHICH MEMBERS ARE LEGALLY ENTITLED

Senator CASE. As the law stands now, if you know, is there any information which a Member of Congress is not entitled to get?

Mr. STEVENSON. Well, I think just this August the Judiciary Committee held fairly extensive hearings on this question of executive privilege, and clearly you do have an executive privilege doctrine going back to the time of George Washington.

One of President Nixon's first acts in office was to indicate he didn't want executive privilege exercised lightly and established a procedure for invoking it.