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IN RE UNITED STATES SENATE SELECT COMM. ON PRESIDE

June 12, 1973

Application of UNITED STATES SENATE SELECT COMMITTEE ON PRESIDENTIAL CAMPAIGN ACTIVITIES

Sirica, Chief Judge.


The opinion of the court was delivered by: SIRICA

The Court has today entered orders which will confer what is commonly termed "use immunity" on two witnesses who are scheduled to appear before the Senate Select Committee on Presidential Campaign Activities (Select Committee). The orders provide that should the witness refuse on Fifth Amendment grounds to give testimony as requested by the Select Committee, "use immunity" may be conferred by the Committee chairman. Thereafter, on pain of contempt, the witness will be required to fully answer the questions put to him and provide the information sought unless such testimony is otherwise privileged. The prospective witnesses, Jeb Stuart Magruder and John W. Dean, III, have not opposed entry of these orders. The Attorney General, however, as represented by Special Prosecutor Archibald Cox, *fn1" has objected to grants of immunity without attendant conditions limiting the publication of testimony. The Court, upon application of the Attorney General's representative, granted a 20-day delay in consideration of the Senate requests, and in the meantime asked the Select Committee and the Special Prosecutor to file written memoranda treating the question of judicial discretion under the applicable statute. *fn2" Specifically the Court asked whether a court might properly exercise any discretion to deny an immunity request of the legislative branch even though procedural prerequisites were met. The Court subsequently heard oral argument in the matter. Pursuant to the reasoning set forth below, the Court has concluded that in this case, its duties are purely ministerial, and that any attempted exercise of discretion on its part, either to deny the requests or to grant immunity with conditions, would be an assumption of power not possessed by the Court.

 We are dealing with the series of statutes under Title 18 of the United States Code, beginning with § 6001, which control the granting of immunity to witnesses. The specific section here construed is § 6005, titled "Congressional proceedings" and is set out below:

 
(a) In the case of any individual who has been or may be called to testify or provide other information at any proceeding before either House of Congress, or any committee, or any subcommittee of either House, or any joint committee of the two Houses, a United States district court shall issue, in accordance with subsection (b) of this section, upon the request of a duly authorized representative of the House of Congress or the committee concerned, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part.
 
(b) Before issuing an order under subsection (a) of this section, a United States district court shall find that --
 
(1) in the case of a proceeding before either House of Congress, the request for such an order has been approved by an affirmative vote of a majority of the Members present of that House;
 
(2) in the case of a proceeding before a committee or a subcommittee of either House of Congress or a joint committee of both Houses, the request for such an order has been approved by an affirmative vote of two-thirds of the members of the full committee;
 
(3) ten days or more prior to the day on which the request for such an order was made, the Attorney General was served with notice of an intention to request the order
 
(c) Upon application of the Attorney General, the United States district court defer the issuance of any order under subsection (a) of this section for such period, not longer than twenty days from the date of the request for such order, as the Attorney General may specify. *fn3"

 Prior to the effective date of § 6005 and its companion sections (December 15, 1970) the immunity of witnesses was controlled by at least 50 separate statutory provisions. *fn4" With the enactment of § 6001 et seq., however, all other such provisions have been repealed thereby bringing under one roof and standardizing for the first time federal immunity measures. *fn5"

 The question has naturally arisen as to whether use immunity adequately supplants one's Fifth Amendment right against self-incrimination. Following the Supreme Court's decision in Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110 (1892), in which a use immunity statute was struck down, it was for some time supposed that only transaction immunity could afford protection co-extensive with the privilege against self-incrimination. A later case, Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896), upheld the immunity concept (that of exchanging the right to silence for protection from prosecution) but dealt only with a transaction immunity statute. The Murphy v. Waterfront Commission, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964), decision, however, implied that the traditional interpretation of Counselman was incorrect and that protection against the direct and derivative use of compelled testimony could adequately replace the Fifth Amendment privilege. Finally, last year, the Supreme Court sustained Title 18 U.S.C. § 6001 et seq. as constitutionally sound on its face. See Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). For the purposes of the matter now under consideration, the Court considers Kastigar as definitively establishing the constitutionality of § 6005.

 The model for what is now § 6005 originated with the National Commission on the Reform of Federal Criminal Laws (Commission). *fn6" At the time the Commission was pursuing its studies, the Senate Judiciary Committee was engaged in hearings on S. 30 (organized crime control bill) which included at Title II provisions treating the question of immunity in grand jury and court proceedings. The Commission later recommended to the President that a general and comprehensive use immunity statute be adopted which would be applicable in grand jury, court, legislative, and administrative proceedings. In April 1969, the President conveyed such a recommendation to the Congress, and on May 12, 1969, Senator McClellan for himself and Senators Ervin and Hruska introduced S. 2122 in the Senate and Congressmen Poff, Edwards and Kastenmeier *fn7" introduced a companion bill, H. 11157, in the House. These bills implemented the Commission's recommendation with no substantive changes as far as the provisions for congressional proceedings were concerned. *fn8" The Senate Judiciary Committee substituted S. 2122 for the original Title II of S. 30, and the House Judiciary Committee subsequently reported out the new version of S. 30, Title II. The bills were enacted without further amendment on October 15, 1970. *fn9"

 In its Working Papers, the National Commission thoroughly explored the language and intent of what is now § 6005, and indeed anticipated the type of situation now before the Court. Both the House and Senate Committees relied heavily on the testimony of Commission members and adopted the Commission's recommendations concerning immunity without significant modification. Counsel for the Select Committee and for the Special Prosecutor have both made references to these Papers. For these reasons, the Court believes it appropriate to refer in the following discussion to the clarifying and interpretive language of the Commission's Working Papers.

 I.

 On its face, § 6005 casts the role of the Court in terms of ministerial duty. The language is mandatory: ". . . a United States district court shall issue, . . . upon the request of a duly authorized representative of the House of Congress or the committee concerned, an order . . ." (emphasis added). The statutory language imposes only two prerequisites or conditions, *fn10" both procedural, for issuing the requested order: (1) if the proceeding is before a House of Congress, the request for an immunity order must have been approved by a majority of the Members present; if the proceeding is before a committee, subcommittee, or joint committee, the request must have been approved by two-thirds of the full committee membership, (2) at least ten days prior to filing the immunity request with the court, the committee or House must have provided the Attorney General with notice of an intention to seek immunity for the named witness or witnesses. In short, judicial discretion cannot be found on the face of the statute.

 It is significant also to note that when the immunity relates to congressional proceedings the Attorney General is deprived of the discretion he enjoys under other sections of the statute. For grand jury and court proceedings (§ 6003) and certain administrative proceedings (§ 6004) the Attorney General may deny permission to seek an immunity order from the Court. Although § 6005 permits the Attorney General to apply to the court for a 20-day extension in which the court "shall defer the issuance of any order," no veto power or other authority is bestowed.

 A recourse to the legislative history of § 6005 for aid in defining the Court's role indicates that the drafters specifically intended the court, in normal circumstances, to grant immunity orders without regard to its own judgment or opinion. The Senate and House Reports contain almost identical statements on this point.

 
A court order must be obtained based on an affirmative vote of a majority of members present in a proceeding before either House or a two-thirds vote of the members of the full committee in a proceeding before a committee. Ten days' notice must be given to the Attorney General prior to seeking the order. The court must defer issuance up to 20 days at the Attorney General's request. As in administrative proceedings, however, the Attorney General is not given veto power. Nor is the court given any power to withhold the order if the factual prerequisites are met. (Emphasis added).
 
See Senate Report at 146, and House Report No. 91-1549, 91st Cong., 2nd Sess. ...

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