from the Superior Court, no adequate removal papers have actually been filed on their behalf.
The congressional defendants and some of the media defendants have since moved in this Court to quash the subpoenas, and B & W has filed papers challenging both this Court's jurisdiction with respect thereto and the substance of defendants' arguments on the motions to quash. The Court set a briefing schedule, and on June 3, 1994, it heard oral argument from the interested parties. This Opinion disposes of all the issues pending before the Court.
A. Little need be said regarding the jurisdictional issues as they pertain to the news media segment of this dispute. The media defendants have not sought formally to remove the controversy from the Superior Court to this Court,
and there is substantial doubt whether any basis exists for such removal.
In the absence of a valid removal, this Court of course lacks jurisdiction over the motion to quash the subpoenas filed by CBS and Linda Douglas. That motion is accordingly denied for lack of jurisdiction.
B. A different result obtains with respect to B & W's claim that the federal courts, including this Court, lack jurisdiction over the matters raised with respect to the Members of Congress.
28 U.S.C. § 1442 provides for the removal of a civil action against "any officer of the United States . . . for any act under color of such office."
This statute is designed to provide federal officials with a federal forum in which to raise defenses arising from their federal official duties. Willingham v. Morgan, 395 U.S. 402, 405, 23 L. Ed. 2d 396, 89 S. Ct. 1813 (1969). More specifically, as the Fifth Circuit has phrased it, in enacting this law the Congress recognized that "federal officers are entitled to, and the interest of national supremacy requires, the protection of a federal forum in those actions commenced in state court that could arrest, restrict, impair, or interfere with the exercise of federal authority by federal officials." Murray v. Murray, 621 F.2d 103, 106 (5th Cir. 1980).
B & W argues that the federal courts may become involved in the consideration of state court proceedings against federal officials only if the particular proceeding is technically designated as a civil or criminal action. While a literal reading of the statute may support this argument, the courts have long interpreted it to include matters, such as subpoenas, that are only incidents of civil and criminal actions, yet have the same interference effect as that recognized in Willingham and Murray, supra, e.g., Boron Oil Co. v. Downie, 873 F.2d 67 (4th Cir. 1989) (federal party removal of subpoena proceedings proper even though the underlying civil action was not removed); State of Florida v. Cohen, 887 F.2d 1451, 1453 (11th Cir. 1989) ("section 1442(a)(1) permits the removal not only of those actions commenced in state court that potentially expose a federal official to civil liability or criminal penalty for an act performed in the past under color of office, but also the removal of civil matters that seek to either prohibit or require certain actions by a federal official in the future"); Environmental Enterprises Inc. v. United States Environmental Protection Agency, 664 F. Supp. 585 (D.D.C. 1987) (subpoenas to EPA quashed which were issued by D.C. Superior Court ordering testimony and production of documents in connection with a state civil action in which EPA was not a party); Sharon Lease Oil Co. v. F.E.R.C., 691 F. Supp. 381, 385 (D.D.C. 1988) (court quashed subpoena on basis that state court had no jurisdiction to compel non-party federal official to testify or produce documents). The Court concludes that, in view of the case law, the B & W position which would restrict removals to full-fledged civil and criminal actions, is lacking in merit.
Indeed, as a matter of logic, history, and common sense there is no basis for distinguishing for these purposes between a civil or criminal action, on the one hand, and a subpoena or other order commanding acts to be performed by federal officials, on the other. The interference with the functioning and the jurisdiction of such federal officials as Members of Congress, Members of the Cabinet, and other federal agency employees is as great in the one category as in the other, and removal to a federal forum is therefore as appropriate in the one category as in the other.
The Court concludes that the removal was proper, and that it has jurisdiction of the motion to quash filed on behalf of the Members of Congress.
Speech or Debate Clause
Article I, section 6 of the Constitution provides that "for any Speech or Debate in either House, they [the Senators and Representatives] shall not be questioned in any other place." The Speech or Debate Clause, rooted in the English Bill of Rights, 1 W. & M., Sess. 2, ch. 2 (1689), is designed to preserve legislative independence. See United States v. Brewster, 408 U.S. 501, 508, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972).
To that end, the lower federal courts have repeatedly been admonished to read the Clause broadly. See, e.g., United States v. Johnson, 383 U.S. 169, 180, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966). It is likewise established that included within the Clause's reach are all the things "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L. Ed. 377 (1881).
More specifically, the Clause has been held by the Supreme Court to reach those matters that are "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. 606, 625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1971).
With this framework in mind, the Court rejects B & W's claim that the documents at issue and the related congressional testimony are not protected by the Speech or Debate Clause. The subpoenas before the Court were secured by a corporation currently under investigation by a House of Representatives committee, and these subpoenas, moreover, were served on the Chairman and another Member of the committee conducting that very investigation. The interference with congressional operations is thus as plain and direct as it appears to be intentional.
The Supreme 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.' . . . 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 degradation of the 'integrity of the legislative process.'
Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504-05, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975). See also, Government of Virgin Islands v. Lee, 775 F.2d 514, 522 (3rd Cir. 1985).
The B & W subpoenas direct the Chairman of the Subcommittee on Health and the Environment and another Subcommittee Member personally to submit to depositions in the law offices of the corporation under investigation, and they further direct these Members of Congress to provide documents or copies to that corporation from among the documents in the possession of the Congress. It would be difficult to find orders that more directly impede the official responsibilities of the Congress and are thus in direct violation of the Speech or Debate Clause.
B & W contends that release of the copies would not harm the committee or the Congress. The Congressmen, for their part, resist relinquishing the copies primarily on the ground that such release would permit identification of the source of the documents in contravention of the confidentiality promised that source, and the chilling effect such release and such identification would have on future sources.
The Members' point is well taken. See Miller v. Transamerican Press, Inc., 709 F.2d 524, 530-31 (9th Cir. 1983), where the court stated:
Informants, may in confidence, give information that is useful in exposing corruption within the government or elsewhere. If a source's identity is disclosed, he could suffer serious adverse consequences . . . The possibility of public exposure could constrain these sources. It could deter constituents from candid communication with their legislative representatives and otherwise cause the loss of valuable information.