The opinion of the court was delivered by: DUMBAULD
At the time of this Court's opinion and order in U.S. v. Forsythe et al., D.C., 429 F. Supp. 715, 125 Pgh.Legal J. 119 (1977), it was specifically stated that the Court was taking no action with respect to Cr.No. 76-163, for the reason that this Court was not then possessed of the record in that case, an appeal being pending with respect to the Court's refusal to amend the indictment by excising the names of "unindicted co-conspirators." 429 F. Supp. at 726-27.
That disability having now been removed, further argument has been heard on behalf of defendant Mazzei at No. 76-163.
Two additional points were made: (1) legislative immunity; and (2) requirement that forfeitable property be specified in the indictment.
Mazzei moves to strike paragraph 12 of Count I of the indictment on the ground that federal constitutional law confers immunity on State legislators for actions taken in their capacity as such. That paragraph alleges that:
Clearly, this paragraph charges, as part of a federal crime, that Mazzei would act in a certain way in his legislative capacity with respect to certain types of legislation.
It is equally plain that to advocate or oppose legislation is of the very essence of the function conferred by law and the voice of his constituents upon a member of a legislative body.
It remains to inquire whether federal constitutional law protects such function in the case of a State senator.
In the case of United States Senators and members of the House of Representatives, Article I, sec. 6, cl. 1 of the United States Constitution specifically provides that "The Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place."
Freedom from being questioned in any other place for any speech or utterance on the floor of Congress is a right that embodies the fruits of long and strenuous struggles in Parliament against the power of the crown during the reign of the Tudors and Stuarts. Peter Wentworth died in the Tower of London in 1597 for discussing matters which Queen Elizabeth I did not wish to be debated in Parliament; King James I tore out of the Commons' journal with his own hands the page on which the protest of December 18, 1621, claiming freedom of debate had been recorded; Sir John Eliot died in the Tower in 1632 after he and eight other members had been committed in violation of the Petition of Right for their part in the exciting events of March 2, 1629, when the door was locked and the speaker held in his chair to prevent adjournment by royal command before the passage of resolutions distasteful to Charles I asserting rights of the people; the same sovereign invaded the precincts of Parliament on January 4, 1642, vainly seeking to arrest five members, who had been spirited down the Thames to safety within the confines of the City of London. With these and other colorful struggles in mind, the founding fathers cherished the important privilege of freedom of debates in Congress.
The reasons and public purpose upholding this absolute immunity, as set forth in the Tenney case,
are equally applicable to State and federal legislators. These reasons are akin to those supporting judicial
immunity. They are intended to promote fearless public service, and to eliminate the burdens of litigation, not merely to determine its outcome. Even if the immunity may be abused by faithless public servants, its maintenance is essential to protection of the welfare of the people.
Supreme Court cases show that the immunity is to be construed broadly, so as to effect its beneficial purposes. Thus in Kilbourn v. Thompson, 103 U.S. 168, 201-205, 26 L. Ed. 377 (1880), it was held that "speech or debate" includes more than words spoken on the floor; it embraces the offering of a resolution, presentation of a report, casting a vote on a pending matter, and, indeed, extends to all things "generally done in a session of the House by one of its members in relation to the business before it." (Ibid., at 204).
And in U.S. v. Johnson, 383 U.S. 169, 180-85, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966), the Court determined that an allegation that it was part of a charged conspiracy that a Congressman made a speech for pay "necessarily contravenes the Speech or Debate Clause." (Ibid., at 184-85, 86 S. Ct. at 757). This was true because "The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and . .. that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry." (Ibid., at 180, 86 S. Ct. at 755).
Two other well-known recent cases reinforce the extensive interpretation of the legislative immunity. In Gravel v. U.S., 408 U.S. 606, 616, 624, 92 S. Ct. 2614, 2622, 33 L. Ed. 2d 583 (1972), a Senator's employee was held to have the same privileges the Senator would have, and these extended to all "prosecutions that directly impinge upon or threaten the legislative process." Committee hearings are included in the protected area of legislative nature. (The Gravel case arose as the result of Senator Gravel's reading of the Pentagon Papers at a meeting of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee.)
The companion case of U.S. v. Brewster, 408 U.S. 501, 512, 520, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972), made clear that customary and expected political (as distinguished from legislative) activities, only "peripherally related" to the legislative process, rather than ...