May 27, 1975
EASTLAND ET AL
UNITED STATES SERVICEMEN'S FUND ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist
[ 421 U.S. Page 492]
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether a federal court may enjoin the issuance by Congress of a subpoena duces tecum that directs a bank to produce the bank records of an organization which claims a First Amendment
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privilege status for those records on the ground that they are the equivalent of confidential membership lists. The Court of Appeals for the District of Columbia Circuit held that compliance with the subpoena "would invade the constitutional rights" of the organization, and that judicial relief is available to prevent implementation of the subpoena.
In early 1970 the Senate Subcommittee on Internal Security was given broad authority by the Senate to "make a complete and continuing study and investigation of... the administration, operation, and enforcement of the Internal Security Act of 1950...." S. Res. 341, 91st Cong., 2d Sess., (1970). The authority encompassed discovering the "extent, nature, and effect of subversive activities in the United States," and the resolution specifically directed inquiry concerning "infiltration by persons who are or may be under the domination of... foreign government...." Ibid. See also S. Res. 366, 81st Cong., 2d Sess. (1950). Pursuant to that mandate the Subcommittee began an inquiry into the activities of respondent United States Servicemen's Fund, Inc. (USSF).
USSF describes itself as a nonprofit membership corporation supported by contributions.*fn1 Its stated purpose is "to further the welfare of persons who have served or are presently serving in the military." To accomplish its declared purpose USSF has engaged in various activities*fn2 directed at United States servicemen.
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It established "coffeehouses" near domestic military installations, and aided the publication of "underground" newspapers for distribution on American military installations throughout the world. The coffeehouses were meeting places for servicemen, and the newspapers were specialized publications which USSF claims dealt with issues of concern to servicemen. Through these operations USSF attempted to communicate to servicemen its philosophy and attitudes concerning United States involvement in Southeast Asia. USSF claims the coffeehouses and newspapers became "the focus of dissent and expressions of opposition within the military toward the war in [Southeast Asia]."*fn3
In the course of its investigation of USSF, the Subcommittee concluded that a prima facie showing had been made of the need for further investigation, and it resolved that appropriate subpoenas, including subpoenas duces tecum could be issued. Petitioner Eastland, a United States Senator, is, as he was then, Chairman of the Subcommittee. On May 28, 1970, pursuant to the above authority, he signed a subpoena duces tecum, issued on behalf of the Subcommittee, to the bank where USSF then had an account. The subpoena commanded the bank to produce by June 4, 1970: S
"any and all records appertaining to or involving the account or accounts of [USSF]. Such records to comprehend papers, correspondence, statements, checks, deposit slips and supporting documentation, or microfilm thereof within [the bank's] control or custody or within [its] means to produce."I
From the record it appears the subpoena was never actually served on the bank.*fn4 In any event, before the
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return date, USSF and two of its members brought this action to enjoin implementation of the subpoena duces tecum.
The complaint named as defendants Chairman Eastland, nine other Senators, the Chief Counsel to the Subcommittee, and the bank.*fn5 The complaint charged that the authorizing resolutions and the Subcommittee's actions implementing them were an unconstitutional abuse of the legislative power of inquiry, that the "sole purpose" of the Subcommittee investigation was to force "public disclosure of beliefs, opinions, expressions and associations of private citizens which may be unorthodox or unpopular," and that the "sole purpose" of the subpoena was to "harass, chill, punish and deter [USSF and its members] in their exercise of their rights and duties under the First Amendment and particularly to stifle the freedom of the press and association guaranteed by that amendment."*fn6 The subpoena was issued to the bank rather than to USSF and its members, the complaint claimed, "in order to deprive [them] of their rights to protect their private records, such as the sources of their contributions, as they would be entitled to do if the subpoenas had been issued against them directly." The complaint further claimed that financial support to
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USSF is obtained exclusively through contributions from private individuals, and if the bank records are disclosed "much of that financial support will be withdrawn and USSF will be unable to continue its constitutionally protected activities."*fn7
For relief USSF and its members, the respondents, sought a permanent injunction restraining the Members of the Subcommittee and its Chief Counsel from trying to enforce the subpoena by contempt of Congress or other means and restraining the bank from complying with the subpoena.*fn8 Respondents also sought a declaratory judgment declaring the subpoena and the Senate resolutions void under the Constitution. No damages claim was made.
Since the return date on the subpoena was June 4, 1970, three days after the action was begun, enforcement of the subpoena was stayed*fn9 in order to avoid mootness and to prevent possible irreparable injury. The District Court then held hearings and took testimony on the matter. That court ultimately held*fn10 that respondents
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had not made a sufficient showing of irreparable injury to warrant an injunction. The court also purported to strike a balance between the legislative interest and respondents' asserted First Amendment rights, NAACP v. Alabama, 357 U.S. 449 (1958). It concluded that a valid legislative purpose existed for the inquiry because Congress was pursuing its functions, under Art. I, § 8, of raising and supporting an army, and had a legitimate interest in "scrutiniz[ing] closely possible infiltration of subversive elements into an organization which directly affects the armed forces of this country."*fn11 Relying on Barenblatt v. United States, 360 U.S. 109 (1959), the District Court concluded that the legislative interest must prevail over respondents' asserted rights, and denied respondents' motions for preliminary and permanent injunctions. It also dismissed as to the petitioner Senators after concluding that the Speech or Debate Clause immunizes them from suit. Dombrowski v. Eastland, 387 U.S. 82 (1967).
The Court of Appeals reversed, holding first that, although courts should hesitate to interfere with congressional actions even where First Amendment rights clearly are implicated, such restraint could not preclude judicial review where no alternative avenue of relief is available other than "through the equitable powers of the court." 159 U.S. App. D.C. 352, 359, 488 F.2d 1252, 1259 (1973). Here the subpoena was directed to a third party which could not be expected to refuse
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compliance; unless respondents could obtain judicial relief the bank might comply, the case would become moot, and the asserted violation of respondents' constitutional rights would be irreparable. Because the subpoena was not directed to respondents, the Court of Appeals noted, the traditional route for raising their defenses by refusing compliance and testing the legal issues in a contempt proceeding was not available to them. Ansara v. Eastland, 143 U.S. App. D.C. 29, 442 F.2d 751 (1971).
Second, the Court of Appeals concluded that if the subpoena were obeyed respondents' First Amendment rights would be violated. The court said: S
"The right of voluntary associations, especially those engaged in activities which may not meet with popular favor, to be free from having either state or federal officials expose their affiliation and membership absent a compelling state or federal purpose has been made clear a number of times. See NAACP v. Alabama, 357 U.S. 449; Bates v. Little Rock, 361 U.S. 516; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); Gibson v. Florida Legislative Committee, 372 U.S. 539 (1962); Pollard v. Roberts, 393 U.S. 14 (1968), affirming the judgment of the three-judge district court for the Eastern District of Arkansas, 283 F. Supp. 248 (1968)." 159 U.S. App. D.C., at 364, 488 F.2d, at 1264.I
In this case that right would be violated, the Court of Appeals held, because discovery of the identities of donors was the admitted goal of the subpoena, id., at 367, 488 F.2d, at 1267, and that information could be gained as easily from bank records as from membership lists. Moreover, if donors' identities were revealed, or if donors reasonably feared that result, USSF's contributions would
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decrease substantially, as had already occurred merely because of the threat posed by the subpoena.*fn12
The Court of Appeals then fashioned a remedy to deal with the supposed violation of rights. It ordered the District Court to "consider the extent to which committee counsel should properly be required to give evidence as to matters without the 'legislative sphere.'" Id., at 370, 488 F.2d, at 1270.*fn13 It also ordered that the court should "be liberal in granting the right of amendment" to respondents to add other parties if thereby "the case can better proceed to a decision on the validity of the subpoena." Ibid. Members of Congress could be added as parties, the Court of Appeals said, if their presence is "unavoidable if a valid order is to be entered by the court to vindicate rights which would otherwise go unredressed." Ibid. The Court of Appeals concluded that
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declaratory relief against Members is "preferable" to "any coercive order." Ibid. The clear implication is that the District Court was authorized to enter a "coercive order" which in context could mean that the Subcommittee could be prevented from pursuing its inquiry by use of a subpoena to the bank.
One judge dissented on the ground that the membership-list cases were distinguishable because in none of them was there a "showing that the lists were requested for a proper purpose." Id., at 377, 488 F.2d, at 1277. Here, on the other hand, the dissenting judge concluded, "there is a demonstrable relationship between the information sought and the valid legislative interest of the federal Congress" in discovering whether any money for USSF activities "came from foreign sources or subversive organizations," id., at 377, 378, 488 F.2d, at 1277, 1278; whether USSF activities may have constituted violations of 18 U.S.C. § 2387(a), which prohibits interference with the loyalty, discipline, or morale of the Armed Services; or whether the anonymity of USSF donors might have disguised persons who had not complied with the Foreign Agents Registration Act of 1938, 22 U.S.C. § 611 et seq. Finally, he noted that the prime purpose of the Subcommittee's inquiry was to investigate application of the Internal Security Act of 1950, 50 U.S.C. § 781 et seq., and that, too, provided a legitimate congressional interest.
The dissenting judge then balanced the congressional interests against private rights, Barenblatt v. United States, supra; Watkins v. United States, 354 U.S. 178, 198 (1957), and struck the balance in favor of the investigative role of Congress. He reasoned that there is no right to secrecy which can frustrate a legitimate congressional inquiry into an area where legislation may be had. 159 U.S.App.D.C., at 378-379, 382, 488 F.2d, at 1278-1279, 1282.
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Absent a showing that the information sought could not be used in the legislative sphere, he concluded, judicial interference was unwarranted.
We conclude that the actions of the Senate Subcommittee, the individual Senators, and the Chief Counsel are protected by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1, and are therefore immune from judicial interference. We reverse.
The question*fn14 to be resolved is whether the actions of the petitioners fall within the "sphere of legitimate legislative activity." If they do, the petitioners "shall not be questioned in any other Place" about those activities since the prohibitions of the Speech or Debate Clause are absolute, Doe v. McMillan, 412 U.S. 306, 312-313 (1973); United States v. Brewster, 408 U.S. 501, 516 (1972); Gravel v. United States, 408 U.S. 606, 623 n. 14 (1972); Powell v. McCormack, 395 U.S. 486, 502-503 (1969); Dombrowski v. Eastland, 387 U.S., at 84-85; United States v. Johnson, 383 U.S. 169, 184-185 (1966); Barr v. Matteo, 360 U.S. 564, 569 (1959).
Without exception, our cases have read the Speech or Debate Clause broadly to effectuate its purposes.
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Kilbourn v. Thompson, 103 U.S. 168, 204 (1881); United States v. Johnson, supra, at 179; Powell v. McCormack, supra, at 502-503; United States v. Brewster, supra, at 508-509; Gravel v. United States, supra, at 617-618; cf. Tenney v. Brandhove, 341 U.S. 367, 376-378 (1951). The purpose of the Clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently. S
"The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." United States v. Brewster, supra, at 507.
In our system "the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders." United States v. Johnson, supra, at 178.
The Clause is a product of the English experience. Kilbourn v. Thompson, supra; United States v. Johnson, supra, at 177-179. Due to that heritage our cases make it clear that the "central role" of the Clause is to "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary, United States v. Johnson, 383 U.S. 169, 181 (1966)," Gravel v. United States, supra, at 617. That role is not the sole function of the Clause, however, and English history does not totally define the reach of the Clause. Rather, it "must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government...." United States v. Brewster, supra, at 508. Thus we have long held that, when it applies, the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals
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as well as those initiated by the Executive Branch. Kilbourn v. Thompson, supra; Tenney v. Brandhove, supra; Doe v. McMillan, supra; Dombrowski v. Eastland, supra.
The applicability of the Clause to private civil actions is supported by the absoluteness of the terms "shall not be questioned," and the sweep of the terms "in any other Place." In reading the Clause broadly we have said that legislators acting within the sphere of legitimate legislative activity "should be protected not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, supra, at 85. Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled. We reaffirm that once it is determined that Members are acting within the "legitimate legislative sphere" the Speech or Debate Clause is an absolute bar to interference. Doe v. McMillan, 412 U.S., at 314.
In determining whether particular activities other than literal speech or debate fall within the "legitimate legislative sphere" we look to see whether the activities took place "in a session of the House by one of its members in relation to the business before it." Kilbourn v.
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Thompson, 103 U.S., at 204. More specifically, we must determine whether the activities are S
"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel v. United States, 408 U.S., at 625.I
See Doe v. McMillan, supra, at 313.
The power to investigate and to do so through compulsory process plainly falls within that definition. This Court has often noted that the power to investigate is inherent in the power to make laws because "[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change." McGrain v. Daugherty, 273 U.S. 135, 175 (1927). See Anderson v. Dunn, 6 Wheat. 204 (1821); United States v. Rumely, 345 U.S. 41, 46 (1953).*fn15 Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate. Watkins v. United States, 354 U.S., at 188.
"[W]here the legislative body does not itself possess
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the requisite information - which not infrequently is true - recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed." McGrain v. Daugherty, supra, at 175.I
It also has been held that the subpoena power may be exercised by a committee acting, as here, on behalf of one of the Houses. Id., at 158. Cf. Tenney v. Brandhove, 341 U.S., at 377-378. Without such power the Subcommittee may not be able to do the task assigned to it by Congress. To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause in derogation of the "integrity of the legislative process." United States v. Brewster, 408 U.S., at 524; and United States v. Johnson, 383 U.S., at 172.
We have already held that the act "of authorizing an investigation pursuant to which... materials were gathered" is an integral part of the legislative process. Doe v. McMillan, 412 U.S., at 313. The issuance of a subpoena pursuant to an authorized investigation is similarly an indispensable ingredient of lawmaking; without it our recognition that the act "of authorizing" is protected would be meaningless. To hold that Members of Congress are protected for authorizing an investigation, but not for issuing a subpoena in exercise of that authorization, would be a contradiction denigrating the power granted to Congress in Art. I and would indirectly impair the deliberations of Congress. Gravel, supra, at 625.
The particular investigation at issue here is related to and in furtherance of a legitimate task of Congress.
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does not know the sources of its funds; in light of the Senate authorization to the Subcommittee to investigate "infiltration by persons who are or may be under the domination of... foreign government," supra, at 493, and in view of the pleaded facts, it is clear that the subpoena to discover USSF's bank records "may fairly be deemed within [the Subcommittee's] province." Tenney v. Brandhove, supra, at 378.
We conclude that the Speech or Debate Clause provides complete immunity for the Members for issuance of this subpoena. We draw no distinction between the Members and the Chief Counsel. In Gravel, supra, we made it clear that "the day-to-day work of such aides is so critical to the Members' performance that they must be treated as [the Members'] alter egos...." 408 U.S., at 616-617. See also id., at 621. Here the complaint alleges that the "Subcommittee members and staff caused the... subpoena to be issued... under the authority of Senate Resolution 366...." The complaint thus does not distinguish between the activities of the Members and those of the Chief Counsel. Contrast, Dombrowski v. Eastland, 387 U.S., at 84. Since the Members are immune because the issuance of the subpoena is "essential to legislating," their aides share that immunity. Gravel v. United States, 408 U.S., at 621; Doe v. McMillan, 412 U.S., at 317.
Respondents rely on language in Gravel v. United States, supra, at 621: S
"[N]o prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves seized the property or invaded
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the privacy of a citizen. Neither they nor their aides should be immune from liability or questioning in such circumstances."I
From this respondents argue that the subpoena works an invasion of their privacy, and thus cannot be immune from judicial questioning. The conclusion is unwarranted. The quoted language from Gravel referred to actions which were not "essential to legislating." Ibid. See United States v. Johnson, 383 U.S. 169 (1966). For example, the arrest by the Sergeant at Arms was held unprotected in Kilbourn v. Thompson, supra, because it was not "essential to legislating." See Marshall v. Gordon, 243 U.S. 521, 537 (1917). Quite the contrary is the case with a routine subpoena intended to gather information about a subject on which legislation may be had. See Quinn v. United States, 349 U.S. 155, 161 (1955).
Respondents also contend that the subpoena cannot be protected by the speech or debate immunity because the "sole purpose" of the investigation is to force "public disclosure of beliefs, opinions, expressions and associations of private citizens which may be unorthodox or unpopular." App. 16. Respondents view the scope of the privilege too narrowly. Our cases make clear that in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it. Watkins v. United States, 354 U.S., at 200; Hutcheson v. United States, 369 U.S., at 614. In Brewster, we said that "the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts." 408 U.S., at 525 (emphasis added). And in Tenney v. Brandhove we said that "[t]he claim of an unworthy purpose does not destroy the privilege." 341 U.S., at 377. If the mere allegation that a valid
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legislative act was undertaken for an unworthy purpose would lift the protection of the Clause, then the Clause simply would not provide the protection historically undergirding it. "In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed." Id., at 378. The wisdom of congressional approach or methodology is not open to judicial veto. Doe v. McMillan, 412 U.S., at 313. Nor is the legitimacy of a congressional inquiry to be defined by what it produces. The very nature of the investigative function - like any research - is that it takes the searchers up some "blind alleys" and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.
Finally, respondents argue that the purpose of the subpoena was to "harass, chill, punish and deter" them in the exercise of their First Amendment rights, App. 16, and thus that the subpoena cannot be protected by the Clause. Their theory seems to be that once it is alleged that First Amendment rights may be infringed by congressional action the Judiciary may intervene to protect those rights; the Court of Appeals seems to have subscribed to that theory. That approach, however, ignores the absolute nature of the speech or debate protection*fn16
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and our cases which have broadly construed that protection.
"Congressmen and their aides are immune from liability for their actions within the 'legislative sphere,' Gravel v. United States, supra, at 624-625, even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes." Doe v. McMillan, 412 U.S., at 312-313.I
For us to read the Clause as respondents suggest would create an exception not warranted by the language, purposes, or history of the Clause. Respondents make the familiar argument that the broad protection granted by the Clause creates a potential for abuse. That is correct, and in Brewster, supra, we noted that the risk of such abuse was "the conscious choice of the Framers" buttressed and justified by history. 408 U.S., at 516. Our consistently broad construction of the Speech or
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Debate Clause rests on the belief that it must be so construed to provide the independence which is its central purpose.
This case illustrates vividly the harm that judicial interference may cause. A legislative inquiry has been frustrated for nearly five years, during which the Members and their aide have been obliged to devote time to consultation with their counsel concerning the litigation, and have been distracted from the purpose of their inquiry. The Clause was written to prevent the need to be confronted by such "questioning" and to forbid invocation of judicial power to challenge the wisdom of Congress' use of its investigative authority.*fn17
When the Senate case was in the Court of Appeals it was consolidated with three other cases*fn18 because it was assumed that "a decision in [the Senate] case might well control the disposition of [the others]." Those cases
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involved subpoenas from the House Internal Security Committee to banks for the bank records of certain organizations. As in the Senate aspect of this case, the organizations whose bank records were sought sued, alleging that if the subpoenas were honored their constitutional rights would be violated. The issue of speech or debate protection for Members and aides is presented in all the cases consolidated in the Court of Appeals. However, the complaints in the House cases are different from the complaint in the Senate case, additional parties are involved, and consequently additional issues may be presented.
Progress in the House cases was suspended when they were in the pleading stage awaiting the outcome of the Senate aspect of this case. The issues in them, therefore, have not been joined. Additionally, it appears that the Session in which the House subpoenas were issued has expired. Since the House, unlike the Senate, is not a continuing body, McGrain v. Daugherty, 273 U.S., at 181; Gojack v. United States, 384 U.S. 702, 706-707, n. 4 (1966), a question of mootness may be raised. Moreover it appears that the Committee that issued the subpoenas has been abolished by the House, H. Res. 5, 94th Cong., 1st Sess., Jan. 14, 1975. In view of these problems, and because the House aspects of this case were not briefed or argued here, we conclude it would be unwise to attempt to decide any issues they might present that are not resolved in the Senate aspect of this case. Powell v. McCormack, 395 U.S., at 496 n. 8; id., at 559 (STEWART, J., dissenting).
Judgment with respect to the Senate aspect of this case is reversed and the case is remanded to the Court of Appeals for entry of a judgment directing the District Court to dismiss the complaint. The House aspects of this case are remanded with directions to remand to
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the District Court for further consideration consistent with this opinion.
Reversed and remanded.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEWART join, concurring in the judgment.
I agree with the Court that the Speech or Debate Clause protects the actions of the Senate petitioners in this case from judicial interference, and that the House aspects of this case should be reconsidered by the District Court. As our cases have consistently held, however, the Speech or Debate Clause protects legislators and their confidential aides from suit; it does not immunize congressional action from judicial review. I write today only to emphasize that the Speech or Debate Clause does not entirely immunize a congressional subpoena from challenge by a party not in a position to assert his constitutional rights by refusing to comply with it.
When the Senate Subcommittee on Internal Security subpoenaed the records of the bank account of respondent USSF (hereinafter respondent), respondent brought this suit in the District of Columbia against the Members of the Subcommittee, its counsel, and the bank to declare invalid and restrain enforcement of the subpoena. Suit was brought in the District of Columbia because the Court of Appeals for the Second Circuit had held one week before in a suit against the same Subcommittee and its counsel that jurisdiction and venue lay only in the District of Columbia. Liberation News Service v. Eastland, 426 F.2d 1379 (1970). Having sued in the District of Columbia, however, respondent found that it could not get proper service on the New York
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bank. Consequently, the only parties that it brought before the courts were the Senators and their counsel.
As the Court points out, the District Court properly entertained the action in order to provide a forum in which respondent could assert its constitutional objections to the subpoena, since a neutral third party could not be expected to resist the subpoena by placing itself in contempt. Ante, at 501 n. 14; see Perlman v. United States, 247 U.S. 7, 12 (1918); United States v. Doe, 455 F.2d 753, 756-757 (CA1), vacated sub nom. Gravel v. United States, 408 U.S. 606 (1972); see also United States v. Nixon, 418 U.S. 683, 691 (1974). But a court's inquiry in such a setting is necessarily quite limited once defendants entitled to do so invoke the privilege of the Speech or Debate Clause, as was done here. If the Senators' actions were within the "legitimate legislative sphere," the matter ends there and they are answerable no further to the court. If their counsel's actions were in aid of that activity, then as a confidential employee of the Members, he is equally shielded from further judicial interference. Compare Gravel v. United States, supra, at 616-622, with Doe v. McMillan, 412 U.S. 306, 314-316 (1973).*fn1
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The Court applies this well-settled doctrine to the present case and holds that since the issuance of the subpoena fell within the sphere of legitimate legislative activity, the proceedings against the petitioners must come to an end. I do not read the Court to suggest, however, nor could I agree, that the constitutionality of a congressional subpoena is always shielded from more searching judicial inquiry. For, as the very cases on which the Court relies demonstrate, the protection of the Speech or Debate Clause is personal. It extends to Members and their counsel acting in a legislative capacity; it does not preclude judicial review of their decisions in an appropriate case, whether they take the form of legislation or a subpoena.
Modern legislatures, and particularly the Congress, may legislate on a wide range of subjects. In order to discharge this function, and their related informing function, they may genuinely need a great deal of information in the exclusive possession of persons who would not make it available except under the compulsion of a subpoena. When duly subpoenaed, however, such a person does not shed his constitutional right to withhold certain classes of information. If he refuses to testify or to produce documents and invokes a pertinent privilege, he still runs the risk that the legislature will cite him for contempt.*fn2 At trial he may defend on the basis of the constitutional right to withhold information from the legislature, and his right will be respected
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along with the legitimate needs of the legislature. As the Court said in Watkins v. United States, 354 U.S. 178, 188 (1957): S
"The Bill of Rights is applicable to [congressional] investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged."I
Accord. Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963); see Quinn v. United States, 349 U.S. 155, 161 (1955); Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113, 1173-1176 (1973).
The Speech or Debate Clause cannot be used to avoid meaningful review of constitutional objections to a subpoena simply because the subpoena is served on a third party. Our prior cases arising under the Speech or Debate Clause indicate only that a Member of Congress or his aide may not be called upon to defend a subpoena against constitutional objection, and not that the objection will not be heard at all.
The privilege of the Speech or Debate Clause extends to Members of Congress when their action is "essential to legislating," in order to assure the independence of the legislators and their freedom from vexatious and distracting litigation. See United States v. Johnson, 383 U.S. 169, 180-182 (1966); United States v. Brewster, 408 U.S. 501, 512 (1972). Further, "a Member and his aide are to be 'treated as one'" under the Clause, "insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself." Gravel v. United States, 408 U.S., at 616, 618. At the same time, however, the Speech or Debate Clause does not insulate
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legislative functionaries carrying out nonlegislative tasks. Doe v. McMillan, 412 U.S., at 315.
Kilbourn v. Thompson, 103 U.S. 168 (1881), was an action to recover damages for false imprisonment. The Court held that the Speech or Debate Clause afforded the defendant Members of Congress a good defense since they had taken no part in Kilbourn's arrest other than to vote that the Sergeant at Arms accomplish it. The Sergeant at Arms, however, was held to answer for carrying out their unconstitutional directive; and Kilbourn later recovered $20,000 from him. See Kilbourn v. Thompson, MacArth. & M. 401, 432 (Sup. Ct. D.C. 1883). The basis for the Court's holding was not, however, as the Court seems at one point to suggest, ante, at 508, that the arrest was inessential to legislating. We have already twice observed that the "resolution authorizing Kilbourn's arrest... was clearly legislative in nature. But the resolution was subject to judicial review insofar as its execution impinged on a citizen's rights as it did there. That the House could with impunity order an unconstitutional arrest afforded no protection for those who made the arrest." Gravel, supra, at 618 (emphasis added); Doe v. McMillan, supra, at 315 n. 9.
This case does not present the questions of what would be the proper procedure, and who might be the proper parties defendant, in an effort to get before a court a constitutional challenge to a subpoena duces tecum issued to a third party.*fn3 As respondent's counsel conceded at oral argument, this case is at an end if the Senate petitioners
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are upheld in their claim of immunity, as they must be.*fn4
MR. JUSTICE DOUGLAS, dissenting.
I would affirm the judgment below.
The basic issues in this case were canvassed by me in Tenney v. Brandhove, 341 U.S. 367, 381-383 (1951) (dissenting opinion), and by the Court in Dombrowski v. Eastland, 387 U.S. 82 (1967), in an opinion which I joined. Under our federal regime that delegates, by the Constitution and Acts of Congress, awesome powers to individuals, those powers may not be used to deprive people of their First Amendment or other constitutional rights. It is my view that no official, no matter how high or majestic his or her office, who is within the reach of judicial process, may invoke immunity for his actions for which wrongdoers normally suffer. There may be few occasions when, on the merits, it would be appropriate to invoke such a remedy. But no regime of law that can rightfully claim that name may make trustees of these vast powers immune from actions brought by people who have been wronged by official action. See Watkins v. United States, 354 U.S. 178, 198 (1957).