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UNITED STATES v. EILBERG

February 15, 1979

UNITED STATES OF AMERICA
v.
JOSHUA EILBERG



The opinion of the court was delivered by: BRODERICK

Defendant has moved for the suppression of evidence which he contends is protected by his Constitutional Speech or Debate privilege. The specific evidence at issue is:

 I. Testimony given by defendant and others before the United States House of Representatives Committee on Standards of Official Conduct (Ethics Committee). Since the government has advised the Court of its intention to use only the defendant's own testimony in cross-examination should he testify in his own defense, the Court will consider only defendant's testimony in this Memorandum.

 II. The expected testimony of Stephen B. Elko, Representative Daniel J. Flood's former legislative aide, concerning what defendant deems to be a "member to member contact".

 Art. I, § 6, Cl. 1 of the Constitution provides that "for any Speech or Debate in either House, they (Members of Congress) shall not be questioned in any other Place." The Speech or Debate Clause has been construed "broadly to effectuate its purpose." United States v. Johnson, 383 U.S. 169, 180, 86 S. Ct. 749, 755, 15 L. Ed. 2d 681 (1966). With respect to the purpose of the Speech or Debate privilege, the Supreme Court said in United States v. Brewster, 408 U.S. 501, 508, 92 S. Ct. 2531, 2535, 33 L. Ed. 2d 507 (1972):

 
Our speech or debate privilege was designed to preserve legislative independence . . . . Our task, therefore, is to apply the Clause in such a way as to insure the independence of the legislature without altering the historic balance of the three coequal branches of government.

 The Speech or Debate privilege protects only the legislative acts of congressmen:

 
Johnson thus stands as a unanimous holding that a Member of Congress may be prosecuted under a criminal statute provided that the Government's case does not rely on legislative acts or the motivation for legislative acts. A legislative act has consistently been defined as an act generally done in Congress in relation to the business before it. In sum, the Speech or Debate Clause prohibits inquiry only into those things generally said or done in the House or the Senate in the performance of official duties and into the motivation for those acts.

 Brewster, supra, 408 U.S. at 513, 92 S. Ct. at 2531. Legislative acts include only those acts "generally done in the course of the process of enacting legislation" or those acts which are clearly a part of the "due functioning of the legislative process." Id. 408 U.S. at 513-17, 92 S. Ct. at 2538-39. Thus, in deciding the motions to suppress the evidence presented to this Court for its consideration, the Court must determine whether the evidence sought to be suppressed are legislative acts within the above definition.

 I. Defendant's Testimony Before the Ethics Committee.

 We will first consider defendant's testimony before the Ethics Committee. *fn1" This testimony was presented at a closed hearing, where defendant was questioned concerning the receipt of compensation in connection with a federal grant to Hahnemann Hospital. This testimony of defendant relates directly to the subject matter of the indictment; in fact, the Ethics Committee questioned Mr. Eilberg concerning his knowledge of 18 U.S.C. § 203.

 In general, the activities of Congressional committees are protected under the Speech or Debate Clause. Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1974); Doe v. McMillan, 412 U.S. 306, 93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973). The government argues that only the members of the Ethics Committee, not Mr. Eilberg, are protected, since only they were acting in a legislative capacity. This is too narrow a view of the Speech or Debate privilege as interpreted by the Supreme Court in Gravel, supra, 408 U.S. at 624, 92 S. Ct. at 2626:

 
. . . a member's conduct at legislative committee hearings although subject to judicial review in various circumstances, *fn2" as is legislation itself, may not be the basis for a civil or criminal judgment against a member because that conduct is within the "sphere of legitimate legislative activity". (footnote added).
 
It might be argued that, since the testimony of the defendant before the Ethics Committee related to 18 U.S.C. § 203, such testimony is beyond the scope of legislative activity and is not protected by the Speech or Debate Clause. The Committee, however, was engaged in the very function the Speech or Debate Clause protects the right of Congress to preserve its independence by disciplining its own members. This right to discipline is one of the matters "which the Constitution places within the jurisdiction of either House." Gravel, supra, 408 U.S. at ...

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