The opinion of the court was delivered by: THOMAS PENFIELD JACKSON
The Select Committee on Ethics of the United States Senate ("Ethics Committee" or "Committee") has applied to this Court for judicial enforcement of its subpoena duces tecum served upon respondent Senator Bob Packwood on October 21, 1993.
The subpoena commands that the respondent produce for the Committee's inspection entries covering the period January 1, 1989, to the present in a personal diary or diaries Senator Packwood has kept of his daily activities since 1969. The Committee issued the subpoena in conjunction with its preliminary inquiry into allegations that Senator Packwood has over the years sexually harassed certain women, has threatened potential witnesses to and complainants of such harassment to dissuade their coming forward with evidence, and has misused his senatorial staff to the same purpose.
Senator Packwood resists enforcement of the subpoena on the ground that it is overly broad and exceeds the appropriate scope of the Ethics Committee's preliminary inquiry. He also asserts that it violates rights guaranteed him by the Fourth and Fifth Amendments to the U.S. Constitution. For the following reasons, the application to enforce the subpoena will be granted.
The record before the Court establishes that on December 1, 1992, the Ethics Committee directed its staff to begin an investigation into widely publicized allegations that Senator Packwood had repeatedly made uninvited and unwelcome sexual overtures to numerous women during his tenure in the United States Senate. The Ethics Committee formally notified Senator Packwood on February 4, 1993, that its inquiry was focused on allegations of sexual misconduct, but would also include charges of witness intimidation and misuse of staff to impede the investigation.
After negotiations between Senator Packwood and his attorneys and the Ethics Committee, it was agreed that the Ethics Committee would be permitted to review the diaries after Senator Packwood had first "masked" certain entries for which he could legitimately invoke an attorney-client or physician-patient privilege, or that pertained only to personal, private family matters. Senator Packwood and the Ethics Committee further agreed that at no time would the Committee retain custody of the diaries, nor would the Committee staff even make notes of diary material, but would mark, for copying by Senator Packwood, those entries appearing to be relevant, the copies of the designated entries then to be furnished to the Ethics Committee. Finally, counsel for Senator Packwood would be allowed to be present while the Ethics Committee staff reviewed the original diaries for relevant entries.
Senator Packwood started providing the original diaries to the Ethics Committee on October 12, 1993. As the Committee staff examined the diaries, counsel for Senator Packwood informed them that Senator Packwood had taken it upon himself to mask certain entries which he believed to contain extremely personal information about third parties--not merely about Senator Packwood or his family--and not otherwise entitled to concealment as privileged under the agreed criteria. The Ethic Committee at first acceded to several isolated instances of such unauthorized masking, and even declined an offer by Senator Packwood to allow it to verify the nature of the information he had obscured from view.
On October 17, 1993, however, Ethics Committee staff marked for copying certain diary entries which suggested that Senator Packwood may have engaged in unrelated and hitherto unsuspected misconduct, namely, the solicitation of employment for his estranged wife from entities or individuals who possessed an interest in the affairs of a Senate subcommittee upon which Senator Packwood served. Counsel for Senator Packwood then informed the Committee he would henceforth be concealing material of his choosing which did not fall within one of the three categories originally approved for masking before submitting a diary to the Committee, to which the Committee staff objected, and, on October 18, 1993, Committee counsel first raised the possibility that it might be necessary to resort to subpoena.
The subpoena as drafted commands the respondent to produce
all diaries, journals, or other documents or material, including all typewritten or handwritten documents, as well as tape recordings and all material stored by computer or electronic means, that are in your possession, custody or control, which were prepared by or at the direction of Senator Bob Packwood, recording or describing Senator Bob Packwood's daily activities for January 1, 1989 through the present.
The Committee has represented in its papers in this Court and at the hearing on this matter that the subpoena is intended only to reach, and to require the production of, what all concerned understand to be "Senator Packwood's diaries," in whatever form they are presently to be found, and then only upon the terms and conditions upon which the parties had originally agreed when their voluntary production was anticipated.
The Ethics Committee voted unanimously on October 21, 1993, to report to the full Senate a resolution to enforce the subpoena. S. Res. 153, 103d Cong., 1st Sess. (1993).
The Senate began debate over the enforcement resolution on November 1, 1993. After the first day of debate had concluded, Senator Packwood offered to turn over diary entries which he alone determined to be "relevant" to the scope of the original inquiry as defined on February 4, 1993. The Ethics Committee again rejected the offer, and debate upon enforcement of the subpoena resumed the next day, concluding with the full Senate ...