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operations and the nature of its corporate structure. The
magnitude of R.C.A.'s activities and the fact that some of
its functions have been decentralized, with consequent
dispersal of records in various places, hardly serve as an
excuse for denying the Grand Jury the right to inspect docu-
ments required by it in furtherance of its duty.

Inconvenience is relative to size. Any witness who is
subpoenaed suffers inconvenience. An individual operating
a small business, for example, or a corporation operated by
a sole shareholder, may suffer, in like circumstances, more
inconvenience than the movant with its thousands of employees.
By this inconvenience, whether suffered by witnesses, grand
jurors, or jurors is part of the price we pay to secure the
effective administration of justice and the enforcement of
our laws." (at 171-172).

There is no statutory obligation imposed upon the Congress to advance compensation to those required by subpoena duces tecum to produce materials even if the cost of such production should be substantial. Nor do the House Rules provide for other than per diem compensation of witnesses appearing before a committee and actual expenses of travel. Rule XXXV. It would appear to be a matter solely at the discretion of the committee in question to determine whether reasonableness requires some form of payment for unusual costs of compliance. "There can be no question of the power of Congress to undertake fact-finding inquiries in aid of legislation. As has been said this necessitates some curtailment of the individual's right to be let alone.... The courts have no authority to speak or act upon the conduct of the legislative branch of its own business, so long as the bounds of power and pertinency are not abused." In re Motion to Quash Subpoenas and Vacate Service, 146 F.Supp. 792, 794 (W.D. Pa. 1956).

The courts generally will not quash a congressional subpoena. In part this flows from the separation of powers principle, but in addition the Speech or Debate Clause has been cited as the basis for a "hands off" treatment of congressional matters barring the most extreme of circumstances.

In Eastland

v. United Servicemen's Fund, 421 U.S. 491 (1975), the Supreme Court recently

held that once it is determined that the activities of a congressional committee fall within the "legitimate legislative sphere," those activities are protected by the absolute prohibition of the Speech or Debate Clause of the Constitution (Art. I, Section 6) against being "questioned in any other Place" and therefore are immune from judicial interference. The Court said: "Without exception,

poses.

our cases have read the Speech or Debate Clause broadly to effectuate its purKilbourn v. Thompson, 103 U.S. 168, 204 (1881); United States v. Johnson [383 U.S. 169 (1966)], at 179; Powell v. McCormack, [395 U.S. 486 (1969)], at 502-503; United States v. Brewster [408 U.S. 501 (1972)], at 508-509; Gravel v. United States [408 U.S. 606 (1972)], at 617-618... The purpose of the clause is to insure that the legislative function the Constitution allocates to Congress may be performed independently... 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." (at 502). The Court stated that a primary purpose of the Speech or Debate Clause is to "forbid invocation of judicial power to challenge the wisdom of Congress' use of its investigative authority." (at 511).

The Eastland Court dealt specifically with the subpoena question. It concluded that "[i]n 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. Thompson, 103 U.S., at 204. More specifically, we must determine whether the activities are 'an integral part of the deliberative and communicative process 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. See Doe v. McMillan, [412 U.S. 306 (1973)], at 313. The power to investigate and to do so through compulsory process plainly falls within that definition..." (at 503-504) (Emphasis supplied.).

It is noteworthy that since a congressional subpoena generally will not be quashed by the courts, a witness who refuses to produce the items requested may not be able to raise objections to the subpoena in a judicial forum after indictment for failure to respond under 2 U.S.C. 192.

It may thus be concluded that objections to a congressional subpoena duces tecum as either too burdensome or as demanding some measure of compensation for costs can, and should, be brought to the attention of the committee upon service of the subpoena. However, if compromise or mutually agreeable procedures cannot be decided upon, the committee's discretion in such matters will be determinative. Allegations that a substantial risk of loss will be incurred by the production of original items will also generally be matter for discussion, with similar discretion to be exercised by the committee and equal hesitation by the judicial branch to intervene. Needless to say, congressional acquiescence to all failures to respond on such a ground would place the ability to obtain original data in jeopardy. It is to be presumed that appropriate safeguards can be arrived at by mutual agreement. Finally, mere allegation of possible infringements of First Amendment rights will also be insufficient to open the matter to judicial intervention - the absolute nature of a defense based on the Speech or Debate Clause will preclude such a result. Eastland, supra, at 509-510.

Ken Bonkorde

Kent M. Renhovde
Legislative Attorney

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RE:

Electronic surveillance objections posed by congressional witnesses under Title III of the Organized Crime Control

Act.

I.

Questions presented:

a) What issues arise under the wiretap statute

b)

when a witness refuses to answer the questions of

a legislative committee because,the witness claims, those questions are based on illegal electronic

surveillance?

What legal response can be made by the congressional committee to shorten excessive litigation delay by

a witness who poses electronic surveillance

objections to committee questions?

II. Factual assumptions:

This memo assumes that the executive branch has

conducted illegal electronic surveillance of a person who later becomes a committee witness. It further assumes that the

witness has been immunized, and upon refusal to answer pertinent

questions, is brought before a court for civil contempt proceedings.

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There are numerous questions that remain unresolved under the wiretap statute in the context of a grand jury investigation. Those uncertainties are exacerbated when these questions arise in the context of a congressional inquiry. The large number of open issues creates a vast potential for dilatory litigation brought by a recalcitrant witness. To obviate this delay, committee attorneys should be prepared to respond immediately to any Title III claim with a demonstration that questions propounded to the witness were 1) not based on illegal electronic surveillance and 2) based on a source independent of illegal electronic surveillance. The timing and nature of that demonstration are described in this memo. IV. Relevant statutes:

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(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States

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