Earl Warren: Number 118, James A. Dombrowski et al., Petitioners, versus James Eastland et al. Mr. Kinoy.
Arthur Kinoy: Mr. Chief Justice and may it please the Court. This case brings back to this Court questions arising out of the factual context of the illegal raids, arrests and seizures of the records and membership lists of our Southern Civil Rights Organization which was the background for this Court's decision in Dombrowski against Pfister in the October '64 term. The complaint in this case charge the conspiracy between these respondents, Senator James Eastland, Chairman of the Subcommittee on Internal Security of the Senate and J.G. Sourwine, the committee counsel, and several Louisiana state officials including Mr. Pfister, the Chairman of Un-American Activities committee of the Louisiana -- joint committee of the Louisiana Legislature and several Louisiana police officers. To -- under the cover of Louisiana anti-subversive laws, this is a law struck down as unconstitutional by this Court in Dombrowski, to utilize illegal police raids, arrests and seizures, all in violation of the Fourth Amendment in order of the complaint charges to seize records and lists of names of members and supporters of this civil rights organization which records and lists of names would have been impossible or extremely difficult for these legislative co-conspirators to obtain lawfully under this Court's own decisions in NAACP against Alabama to recently in Gibson against Florida as the Court is of course aware. Since NAACP against Alabama, the Court has stressed constantly the chilling effect upon constitutional rights of citizen of a demand for list of names of supporters of Southern Negro Movements for Equality. Now, the complaint charges that the plan and conspiracy was all for the purpose of harassing these plaintiffs and discouraging them and their supporters from asserting and attempting to vindicate the rights of Negro citizens of Louisiana in the Deep South. The plaintiffs ask for damages and certain injunctive relief.
Abe Fortas: What does the complaint say alleged that the two defendants did?
Arthur Kinoy: The complaint alleges that they participated fully in this conspiracy.
Abe Fortas: Where is that?
Arthur Kinoy: That's in the first allegation, the general allegation Mr. Justice Fortas.
Abe Fortas: All I saw in your complaint was sort of a conclusory allegation as distinguished from the allegation about other people with respect to these defendants. I didn't see anything. I don't remember anything except the allegation in paragraph 12 which appears on page 4.
Arthur Kinoy: Now, in addition --
Abe Fortas: That is that they entered into a planned agreement in conspiracy to deprive the plaintiffs of their rights, privileges and immunities.
Arthur Kinoy: You're right, Justice Fortas. That's the general allegation but there is a specific allegations also as to these particular respondents in paragraph 20 of the complaint, page 7, and paragraph 22 of the complaint, very specific allegations of activities on the part of these respondents in furthering the conspiracy --
Abe Fortas: I understand that but what I'm saying is that as to the beginning of the conspiracy, the alleged conspiracy, the illegal seizure of documents --
Arthur Kinoy: Those facts --
Abe Fortas: -- the only allegation that you don't make any specific allegation with respect to that.
Arthur Kinoy: That's right Justice Fortas. Those very specific facts of their participation in the initiation of the conspiracy emerged in respondents' own motion for summary judgment, their own affidavits and the testimony of respondents Sourwine on deposition. Very specific facts emerged as to their participation in what this Court called in the General Motors case, a joint collaboration in the initiation of the original conspiracy. Those facts are very clear.
Abe Fortas: Well, what was -- what was that as you understand it? What was their participation in the initiation?
Arthur Kinoy: Certainly, the facts which emerged from the affidavits and from their own respondent, Sourwine's testimony were these following facts. In the summer 1963, certain private discussions took place between respondent Sourwine and one of the co-conspirators, Rogers who was the -- one of the counsels to the alleged Louisiana Joint Committee. During this private correspondence -- private discussions the question of the availability of the records and membership list of the civil rights organization were discussed. That's July '63, fact one, uncontested by the respondents. Secondly, the plan not to use the legislative subpoena but to use the police raids instead to seize the records emerged in late August or early September according to their own testimony. And there's a very interesting affidavit which emerged in the Louisiana branch of this litigation which is an appendix to our brief, an affidavit from one of Louisiana co-conspirators which pinpoints the plan at a meeting in late August in ‘63 which they developed what they called operation cheap talk to see the --
Abe Fortas: Yes, but were these -- were these defendants involved in that --
Arthur Kinoy: They were not present at that meeting. The next fact which emerges from the record is after the plan had gelled, another private discussion took place in the middle of September between Sourwine and between Rogers. This is after the plan had gelled. A private discussion took place in which they further discussed the civil rights organization's records. Shortly thereafter, the record shows, shortly thereafter, the plan was put into operation and Sourwine in his own testimony -- I'm sorry, Rogers in his own testimony describes the development of the plan, the seizures then took place shortly thereafter on October 4th. That --
Abe Fortas: Do you say that if allowed to go to trial, you'll be able to prove that the defendant, Sourwine at that conference participated in a plan to use the police power and search warrants rather than subpoenas?
Arthur Kinoy: Absolutely, Justice Fortas. And I would say that the measurements, the yardstick for the type of evidence required to go to trial on this issue and the conspiracy question which the Court discussed last term in General Motors per se. We are not required, as the government was not required in General Motors to prove explicit agreements in the conspiracy, and as the Court pointed out in the CBS case in Poller against CBS. Now in the summary judgment question, it is impossible when a conspiracy, where the evidence is securely in the hands of the co-conspirators and hostile witnesses to show explicit agreement. I would suggest that on these facts, the Court has never had a sharper case in which there was evidence at least requiring ads. I would like to point out to you Justice Fortas that this -- the Circuit Court here, the District of Columbia found that on this issue of whether or not these respondents were participants in the plan on the conspiracy, that Circuit Court here found that there were disputed issues of facts which would require resolution by trial. It's very interesting in that respect. The Circuit Court disagreed with the respondents on their major thrust to the argument. The main thrust of the argument of the respondents below was they had an alternative position, a) that we had not put forward a serious claim that these respondents as Justice Fortas asked the question were participants in the conspiracy. That was their main argument. And summary judgment should be granted. They had an alternative argument that even if they were participants in the conspiracy, even if they had participated in the illegal police seizures and raids, nevertheless the doctrine of legislative immunity protected them. It was an alternative argument. Now, in the court below, in the per curiam opinion what is so interesting here, the posture of the case now before this Court is that the court below rejected their main contention and said, “Were that the only issue in this case? Then we would be constraint to have great difficulty to find that there were not disputed issues of facts upon involving their participation in the conspiracy which would require exploration by a trial.” So that the respondents are here before this Court in effect asking this Court to reject the conclusion of the lower court that as to the Court and Justice Fortas asked, there are sufficient disputed issues to require retrial. Now, if I can give another example Justice Fortas which led the District -- the Circuit Court to the conclusion that there had to be a trial to resolve these issues. Take the formulations in the General Motors case, not only in respect to the initiation of the conspiracy in respect to its execution. I would suggest that there is more than adequate evidence here to show the joint collaboration of the co-conspirators to execute it.Now, what does this record show? It shows the most extraordinary maneuver which took place on October 4th in New Orleans. In 24 hours, the following things happened. As a result of the plan, operation cheap talk, as a result of the plan to use police machinery to seize these records, the police came in and as this Court knows in Dombrowski, Pfister where the description of the raids are set forth, grabbed all of the records, everything in the offices of the organization and Mr. Smith is watching the lawyers. Now, by the police doing --
Potter Stewart: And what -- I didn't hear it.
Arthur Kinoy: I'm sorry Justice --
Potter Stewart: And something --
Arthur Kinoy: Oh! The records of Mr. Smith and Mr. Waltzer, the attorney in the Dombrowski, Pfister who were also --
Potter Stewart: I see.
Arthur Kinoy: -- they're on that party during this action.
Earl Warren: Mr. -- Mr. Kinoy --
Arthur Kinoy: Yes Chief Justice?
Earl Warren: Would you address yourself a little more to the --
Arthur Kinoy: Certainly, right.
Earl Warren: -- of the following.
Arthur Kinoy: Certainly Your Honor.
Earl Warren: It will be Mr. Robb is pretty much out of position.
Arthur Kinoy: I -- I apologize. I apologize. Now, the immediate effect of the police seizures was to deprive the civil rights organization of any opportunity to defend against a legislative subpoena of these records by doing the conventional thing of coming in to quash the subpoena. They couldn't do it because the police grabbed it immediately. But then look what happened. Instantaneously, the records were then turned over to the Louisiana Committee with the subpoena all prepared for forthwith production of everything seized and then that night, the record shows, and this I think Justice Fortas goes to your question again. That night, the record shows that Rogers got on the telephone to Sourwine, said, “Alright, we've got the records, come on down to Louisiana.” The next morning, Sourwine arrives in Louisiana with blank subpoenas signed by the Chairman but completely in blank. Subpoenas incidentally as the argument will later show, totally unauthorized by the Senate Committee itself and these subpoenas are then copied verbatim from the Louisiana subpoena which in turn was copied verbatim from the warrant of arrest later declared of course totally illegal and violative of the Fourth Amendment, in other words, they wrote out general warrants, warrants of assistance right then and there. Now --
Hugo L. Black: Who -- who is Rogers then Mr. --
Arthur Kinoy: I'm sorry. Rogers was the counsel to the Louisiana Legislative Committee. I asked the Court to consider what happened in that 24 hours. On the one hand, the organization and the plaintiffs were deprived of the right, the ability to defend against the legislative subpoena. At the end of the 24 hours, they were deprived of their opportunity to use the criminal processes to go in and move to quash and vacate the warrant and to ask for a return of the books and records because at the end of the 24 hours from the police they were then in the hands of a legislative committee and that is in effect what happened because incidentally this was all secret. Nobody knew anything about this. It all came out two weeks later, when we went into the Louisiana State Court and we moved to vacate the warrants of arrest and this motion was granted. The grant there was not probable cause for the arrest. We then got up and we said, alright, we ask the state court to order that the books and records and membership lists be returned to the organization. At that moment, for the first time, we learned about this 24-hour maneuver. Because at that moment the state officials got up and said, “We're very sorry, we cannot return these books and records because they are, although physically here in Louisiana, they are in the custody of Senator Eastland, and we cannot return them.” The state court said, “I'm sorry, there's nothing we can do about it.” And the books and records were not returned. Then the third phase of the conspiracy unquoted. That was the first time anybody, ourselves or the pubic, knew about the activities of these respondents. It's very significant I think that it was a secret. Normally, a senate committee when it subpoenaed something, normally, it's in the newspapers, they'll issue a press release, this was very secret. We didn't know about it until that state court. So what did we do? We then went into the Federal District Court that was on Friday, the state decision came down Saturday. We went into the Federal District Court. We instituted the first what I would call, the Louisiana branch of this litigation. We instituted an action identical to this action in the Federal District Court in Louisiana asking for damages, the illegal searches and seizures, and for the return of the books and records injunctive relief. Saturday, the complaint was filed in the Court. Sunday morning, we appeared before Federal District Judge then Federal District Judge Ainsworth and ask for a temporary restraining order to issue against the turning over of these records physically because they were still in the State of Louisiana to these respondents. The judge then asked the Louisiana officials who were in that court, “Can I have your assurances that these records are in Louisiana?” And they said, “Yes, they're in Baton Rouge.”
Byron R. White: Are these -- these facts are all --
Arthur Kinoy: All in the record they come out of the testimony of Mr. Sourwine and affidavits and I believe they are uncontested. At that point, the judge told us, “Send a telegram to the respondents including Senator Eastland.” A telegram which says, “I'm sending down this TRO for a hearing tomorrow morning, Monday morning. And the TRO will involve an injunction to restrain turning these records claimed to be illegally seized over to you and I request your presence.” The telegram went to Senator Eastland that in Sourwine's testimony. That was Sunday. At 10 O'clock Sunday night, Senator Eastland, respondent here, got that telegram. He then got on the telephone to respondent Sourwine and these are Sourwine's words, not ours. Senator Eastland then told Sourwine, “Get those records out of Louisiana.” Sourwine protested, “It was hard to do it that night.” He said, “Well, take them across the state line to Mississippi, to Woodville, Mississippi.” Sourwine then called one of the Louisiana state officials also a co-defe -- codefendant in the actions and said, “Get those records out of Louisiana.” At 12 O'clock that night, a van arrived in Baton Rouge, took all of the records, membership lists and everything else out of Louisiana across, I think the Court can take notice that Woodville, Mississippi is across the state boundary, took those records into Woodville, Mississippi. The next morning we appeared in Federal Judge Ainsworth's courtroom in response to the TRO. And when the judge called the matter to be heard, the state officials got up and said, “We're very sorry Your Honor, the books and records are no longer in the jurisdiction of this Court. They are out of the jurisdiction of the Federal District of Louisiana,” where I ask this Court what possible inferences can be drawn from that conduct? Surely on a motion for summary judgment, we are entitled to draw on inference of a) guilty knowledge on the part of these respondents, that the books and records were illegally seized. Surely, we are entitled to draw an inference that in addition to that, these respondents were attempting to pursue the objectives of the conspiracy. I would suggest that short of actual confessions in the record, it would be difficult to conceive of further evidence which would -- would require to withstand a motion for summary judgment. Now, there has never been an explanation for this extraordinary conduct of that Sunday evening. One explanation Sourwine suggested on his deposition that the Federal District Court didn't have jurisdiction anyway. Well, I would suggest to the Court that we don't have to explore very fully that response, perfectly easy for an attorney to go into the Federal District Judge's chambers the next morning and say “Your Honor, you can issue any temporary restraining order but you have no jurisdiction.” I would suggest that perhaps the real motivations emerged from respondents Sourwine, the admission in the testimony that he did it because he thought and these were his words, he would be in an awkward situation, if the records were not removed. Now, I suggest to the Court that there was more than -- that this was the reason why the District Court -- the circuit court below rejected out of their hand the respondent's contention that there was not sufficient evidence to go to trial and the issue with their participation of the conspiracy --
Speaker: When you're talking about the circuit court below, you're talking about the District of Columbia.
Arthur Kinoy: The District of Columbia court below. Now, the thing that is so interesting if I can suggest to the Court is that in this Court the respondents now shifting their positions. Once again they are arguing to the Court without explaining that they have to persuade the Court to push aside the conclusions of the circuit below. Once again, they come here and they argue that summary judgment was proper there was no evidence to go to it.
Earl Warren: We'll do recess now.
Arthur Kinoy: Right, thank you.
Earl Warren: Mr. Kinoy, you may continue your argument.
Arthur Kinoy: Thank you, Your Honor. At the luncheon recess, I had remarked that in this Court, the respondents have seem to shift the main thrust of their position back to in effect urging the Court to reject the conclusion on the factual record of the lower court. Now, this shift may in certain respects be due to the intervening impact of a series of decisions in the Fifth Circuit in the parallel Louisiana litigation which I would suggest to the Court may throw considerable light on the problems presented in this case. In that parallel litigation instituted in the Federal District Court in Louisiana, defendant Pfister who is the Chairman of the Un-American Activities Committee of the Louisiana legislature moved for summary judgment on the -- in an identical complaint, on the ground that he was protected by doctrine of legislative immunity. Judge Ainsworth rejected the motion for summary judgment on the ground that there was a disputed fact as to Pfister's participation in the plan and the raids, that these disputed fact as to its participation in the raids, raised a question as to whether Judge Ainsworth said, his activity, which he is charged in the complaint, was legitimate legislative activity within the meaning of this Court's decision in Tenney-Brandhove. Then a very curious thing happened. Pfister interpleaded as third party defendants, all of the members of the Louisiana legislative committee saying that he was responsible, so were they. They came in before Judge Ainsworth. They move to for summary judgment also on the ground they were protected by the doctrine of legislative immunity. Judge Ainsworth granted their motions. Pfister then appealed that decision to the Fifth Circuit. And this November, November 1966, the Fifth Circuit in an opinion by Circuit Judge Wisdom, reversed the granting of summary judgment as to the members of the legislative committee in an opinion which I would suggest puts its finger upon the conceptual confusion which I think is present in the Circuit Court's opinion in the District of Columbia in this case. Judge Wisdom pointed out in Arceneaux against Pfister, we have included for the Court's convenience Judge Wisdom's written opinion as an appendix to our brief. Judge Wisdom made the following analysis, and he said, “There are disputed issues of facts as to whether these third party defendants had any knowledge of the plan to use police raids, or participated in any way in the planning and initiation and carrying out of this conspiracy. There is a disputed issue of fact as to that.” That in turn, Judge Wisdom pointed out, not only precludes a motion for summary judgment as to their participation in the conspiracy but precludes a motion for summary judgment as to their defense of legislative immunity. Because Judge Wisdom then pointed out that the issue of their participation in the conspiracy undisputed issue raises he said an issue as to whether or not this is legitimate legislative activity within the meaning of this Court's decision in Tenney and to drive this point home, Judge Wisdom italicized in the opinion the word ‘legitimate' in the quotation from the Court's opinion in Tenney. Accordingly, the Fifth Circuit reversed ordered that these defendants also must stand trial. Now, what is the situation therefore in the parallel Louisiana litigation? These cases are on the ready-jury calendar. To make it perfectly clear that the cases must go to trial, Judge Ainsworth granted a permissive appeal to Pfister from the denial of his motion for summary judgment. That went to the Fifth Circuit, and the Fifth Circuit dismissed the appeal. All of the Louisiana officials including the legislative officials will stand trial in Federal District Court in Louisiana, in the cases on the ready-jury calendar. Now --
Potter Stewart: Well, I just -- I had -- I'm -- perhaps misunderstood. I thought that the other members of the committee were now out of that case as determined.
Arthur Kinoy: No. No Judge Stewart. No, they are in the case. Their motion for summary judgment which was granted by the District Court has been reversed by the Fifth Circuit.
Potter Stewart: That's on the trade -- impleading. There have been impleading (Voice Overlap).
Arthur Kinoy: Right. They are impleaded now Justice Stewart.
Potter Stewart: -- by Pfister.
Arthur Kinoy: Yes.
Potter Stewart: So its Chairman Pfister and the other members of his committee, is that it?
Arthur Kinoy: Yes. They are defendants and they will stand trial.
Potter Stewart: And then the -- the -- how do the state police or the state policemen is out, is that it?
Arthur Kinoy: That's right. But all the other police officials are in.
Potter Stewart: And who else is in there?
Arthur Kinoy: The police officials, the staff director of the Louisiana committee, Alexander, and --
Potter Stewart: Mr. Rogers?
Arthur Kinoy: Mr. Rogers was never joined as a defendant.
Potter Stewart: Never joined.
Arthur Kinoy: No.
Potter Stewart: And the -- and -- and are -- and are the respondents in this case named as defendants in that case?
Arthur Kinoy: They were named but they were not served.
Potter Stewart: Never been served.
Arthur Kinoy: We couldn't serve them until we reached them in the District of Columbia.
Potter Stewart: And the defendants down there in that case have they been named as defendants in this case --
Arthur Kinoy: Yes, they have.
Potter Stewart: -- but not served?
Arthur Kinoy: And not served.
Potter Stewart: Uh-hmm.
Arthur Kinoy: Yes, Your Honor, exactly.
Potter Stewart: And that's a conspiracy case and the complaint is I supposed very similar to --
Arthur Kinoy: Identical to that case.
Potter Stewart: Alright.
Arthur Kinoy: Exactly right and they will stand trial there. Now, I would suggest to the Court that the analysis of Judge Wisdom in the Arceneaux case places a spotlight on the problem before this Court because in essence what the Court faces here is the sharp fact that the conduct charged to these respondents in the participation in the illegal raid and seizure, and violation of the Fourth Amendment cannot under any stretch of the imagination be deemed to be if in fact they participated in this a legitimate legislative activity protected by the scope of this featured debate clause.
Abe Fortas: Mr. Kinoy there -- I beg your pardon sir. There are two factual situations here and I wonder if you make a distinction between them. First is the alleged participation in the unlawful search and seizure. The second is the alleged unlawful improper or whatever, how do you style it, action with respect to the picking of the documents while a proceeding was pending in the Court of Judge Ainsworth. Now, my question to you is whether for purposes of the legislative immunity problem, you make a distinction between those two.
Arthur Kinoy: Oh! Justice Fortas, no, I would make no distinction because for the purposes of the immunity doctrine, neither of the two phases which you described would be sufficient to invoke the doctrine. The respondents suggest that the latter phase, the use of the unauthorized subpoena in some way is sufficient to invoke the doctrine. My suggestion to that is that the short answer to that is Kilbourn-Thompson, and every subsequent decision of this Court on the immunity question. In Kilbourn which this Court in the Gojack decision just last term, so a reason to describe as the leading case on the subject, in Kilbourn, the warrant of arrest did not serve to immunize the sergeant at arms from tort liability for the wrongful arrest. Similarly here, the subpoenas are insufficient to immunize the respondents from tort liability for the illegal searches and seizures for several reasons. First, a search and seizure itself, in violation of the Fourth Amendment is as the Court described in the Stanford case, the same term that Dombrowski-Pfister was decided, search and seizure of this nature, Stanford very interesting case because it involved a raid identical to this raid, a raid under the anti-subversive laws of Texas. And this Court described that raid, the same thing happened, they took all the books and records, everything from the office. The Court described this raid as a constitutionally impermissible act. Now, if this kind of a raid on a general warrant, is a constitutionally impermissible act, it is no less or constitutionally impermissible. It's in the same caliber as the warrant of arrest in Kilbourn which the Court said was not sufficient to immunize the sergeant in Kilbourn-Thompson from a suit for damages. Now, secondly, we have a situation in which the subpoenas issued in blank were themselves violative of the Fourth Amendment. Now, that is the problem which the respondents have not coped with because the incredible aspect of the record is that these subpoenas in blank which were filled out that morning in Baton Rouge were copied identically from the state subpoena which was based upon the criminal warrant. These were stricken and the Court remarked in Dombrowski-Pfister, these were stricken as illegal, violative of the Fourth Amendment. They were like the warrants in Stanford. They were what the Court in Stanford called absolutely identical to general warrants, the writs of assistance. Now it, I would suggest to the Court, is impossible to assert that the use of a general warrant or a writ of assistance is legitimate legislative activity in any sense of the work and as the Court pointed out in Stanford, not since the statement of James Otis in the revolutionary period. Has any court in this country has any legislative body ever suggested that the use of a general warrant, a writ of assistance could conceivably be considered legitimate legislative activity. Now, thirdly, the blank subpoenas which incidentally now are the only shred these respondents hold to on adoption of legislative immunity here. They don't assert as they did below that if they really participated in the illegal searches and seizures that they initiated, planned or helped it along as we discussed earlier this morning, they don't really assert that adoption of legislative immunity could protect that. That's difficult to assert. The only shred of holding to the doctrine is the use of this subpoena. But the subpoena itself not only is illegal, violative of the Fourth Amendment as the writ of assistance but was totally unauthorized by the committee itself. Now, I suggest to the Court --
Potter Stewart: I suppose that even if that were not -- even if the subpoena were not illegal, it could still be one of the overt acts in an illegal conspiracy, could it not?
Arthur Kinoy: Absolutely, Your Honor.
Potter Stewart: The overt acts themselves need not be illegal, that would be shown as to -- in the carrying out of an illegal conspiracy, isn't that correct?
Arthur Kinoy: That's absolutely correct.
Potter Stewart: That's putting to one side of course, the problem of immunity under the speech debate clause.
Arthur Kinoy: That's right, and I address myself only to this Justice Stewart from the point of view of this featured debate clause problem.
Potter Stewart: Right. I see.
Arthur Kinoy: And in that respect, in addition to the illegality of the subpoena under the Fourth Amendment, the respondents here concede in their brief that this subpoena issued in blank and then filled out in Baton Rouge was wholly unauthorized by the Senate Subcommittee. However, the respondents say this is a minor technical question. This is a question which can be cured, would later cure. I would suggest that the suggestion that the unauthorized use of a subpoena in the area of investigation into the rights of citizens under the First Amendment is no minor technical matter. From the decisions of this Court in Watkins, to the decisions last term in Gojack, it seems clear that the Court has said that as a minimum, as a minimal out of boundary of legislative power in the area of the use of compulsory process to investigate into activities associations of citizen within the framework of the First Amendment as an outer minimal boundary, the Court has directed the concept of the requirements of authorization for such legislative activity. Now, this is no minor technical question. In Watkins, this Court said, that that requirements of authorization went to the heart of the preservation of limited constitutional government that at a minimum putting aside the impact of an authorized subpoena upon the exercise of the First Amendment right that at the minimum the exerci -- the use of the requirement of authorization chartered the out of boundaries, the outer boundaries of legislative power. It would seem therefore that far from being a technical question, the use of a subpoena is so violative of the Fourth Amendment. It's self-written as a general writ of assistance and itself not authorized by the Senate Subcommittee could never be conceived of as legitimate legislative activity within the meaning of this featured debate clause.
Abe Fortas: Let's see if I correctly recall the facts on which is the last argument is based. Is it your submission that the subpoena was issued in blank?
Arthur Kinoy: It was. It was submitted as such.
Abe Fortas: But why, isn't that the issuance have been authorized by Senator Eastland?
Arthur Kinoy: Yes, it could.
Abe Fortas: Then Senator Eastland signed it as Chairman of the committee.
Arthur Kinoy: Yes, the record show --
Abe Fortas: While it was not filled in, is that it?
Arthur Kinoy: It was not filled in.
Abe Fortas: And then after it was served or taken, then there was a ratification by way of formal resolution of the --
Arthur Kinoy: About three months later, yes. Two months later, I believe it was.
Abe Fortas: By resolution of the committee itself?
Arthur Kinoy: Yes. Now, that --
Abe Fortas: And your -- your contention is that that -- it doesn't --
Arthur Kinoy: It doesn't cure.
Abe Fortas: The moment that doesn't say that's --
Arthur Kinoy: Yes. Under Gojack and on the other decisions of this Court and I would point out Justice Fortas also that in the examination of the resolution of the Senate committee there is some question even about that which we were not permitted to fully litigate in the District Court. Senator Keating raised the question about whether or not the ratification actually took place and that sort to take the deposition of Senator Keating but I could not get an adjournment in trying to take that, but putting aside that, in the examination of the resolution itself, very interesting because the resolution does not specifically say that we authorize the issuance of that subpoena or we think that subpoena was properly authorized. All the resolution says that these documents which we now have here can be put in our record. And after they put in our record, they should be sent back to New Orleans. So I would suggest that even on that level there was no direct authorization but I do not rest on that, because I think it -- it doesn't go to the question of why authorization is so critically required in this entire area. Now, I would suggest then that any effort to invoke the legislative immunity doctrine here runs in the face of this Court's own definitions from Kilbourn to United Stated against Johnson itself as to the limits which must be fenced around the privilege. I find it helpful for example, the opinion of the English Courts in Stockdale-Hansard which this Court in Kilbourn said represented the basis of the thinking that went into the immunity concept itself, to the clause itself. And in Stockdale, the Court will recall, the English Court felt that it was essential if the liberties of citizens are to be protected if the double pole which is exercised in the emergence of the immunity, one pole toward the independence and free speech of the legislature, the other pole for the protection of the rights of citizens to exercise fundamental liberties and to be protected by a remedy in the Court of Law against infringement of those liberties. If those two poles are to be reconciled and they must be, said the Court in Stockdale and this Court in Kilbourn, then we must as the English Court said, we must fence in the privilege by the law. That is our responsibility. We must fence in the privilege by the law. And the Court did that in Kilbourn. And the Court said that the illegal act of arrest does not protect the sergeant of arms and a money judgment will lie and was later, actually collected against the sergeant of arms. Secondly, the Court, Justice Miller said in Kilbourn, if the members of the Congress themselves had participated in the arrest in anyway, he says, they would be liable as the sergeant of arms. They are protected for what? Only the pure legislative act, the passage of the resolution authorized, that alone says the Justice in Kilbourn would protect them.
Abe Fortas: But you're not arguing are you Mr. Kinoy that this -- that if the subpoena, if a subpoena is issued from the proper authorization and if it is defective for some reason other than authorization that legislative immunity would not apply.
Arthur Kinoy: No. I'm not arguing that Justice Fortas and I don't have to argue that or reach that in this situation, not at all. I think -- I would suggest that the definition in Tenney based upon the definition in Kilbourn is sufficient here that where the act is not an act traditionally within the power of the legislative -- legitimate legislative activity where it is as in Kilbourn, an unlawful illegal arrest where it is as here in Dombrowski, Eastland, an unlawful search or seizure. Then clearly that is the line, that is where the law offenses in the immunity. And at that point, the courts of law are obligated to provide the remedy to protect the citizen. And at that point the legislative immunity is found at all. Now, some suggestions has been made that if --
Byron R. White: Mr. Kinoy, would your argument be the same if there had been no involvement of state officials at all that the -- that the Chairman had signed a blank subpoena and Sourwine had taken the subpoena and -- with his own investigators made the seizure here?
Arthur Kinoy: The involvement with the state officials, Justice White, goes to the availability of the civil rights act course of action in this case.
Byron R. White: I understand that.So -- so -- but as far as the illegality --
Arthur Kinoy: Yes, I would --
Byron R. White: -- of the seizure is concerned --
Arthur Kinoy: I would make the same argument, yes. I would have it --
Byron R. White: So that the -- so that the state officials in the end of it is that isn't what makes it -- makes it illegal.
Arthur Kinoy: That's correct. That's correct Justice White.
Byron R. White: This is -- this is just some way to get under the Civil Rights Act.
Arthur Kinoy: Remedy is offered for on the color of state law and that is available, I would suggest, in this situation. But as far as the basic thrust of the illegality is concerned, the illegality stands whether or not, there was a participation by the state officials. Yes, I would suggest that Justice White. Now, there has been a suggestion made by the respondents that perhaps the doctrine of this Court in bar, the official immunity doctrine might conceivably be available perhaps to respondent Sourwine. I don't want to spend very much time on that except to point out that from, that the doctrine and concept which this Court developed in bar, a judicially constructed doctrine grounded on the principles and concepts of the common law, points an answer to this problem in the common law because in the classic case involving remedies for searches and seizures, Entick against Carrington, the English Court not only found for the plaintiff on an action but permitted damages against his majesty, Secretary of State, an order that damages issue. Why? Because the English Court in Entick said in Carrington that the interest in preserving the fundamental liberties of the citizen, the subject in that case is such a deep-seated requirement that a remedy and damages far from interfering with the operations of government is essential if government is going to what? Is going to view two constitutional lines. And I would point out to the Court that in recent decisions of the Circuit Courts, three of the circuits have refused to apply any doctrine or concept of immunity to the charge of participation in illegal searches and seizures. This is too fundamental over a question. It goes to the heart of the functioning of government itself within the framework of constitutional law. Now, I would suggest to the Court that as in Dombrowski-Pfister, before the Court two terms ago. The issues here transcend the immediate question here presented as compelling as they are for relief. And as in Dombrowski-Pfister the problem is here posed as to whether this Court will say that under this system of ordered law, a remedy exists for the protection of fundamental liberties of the people and that this remedy will be available and that lawless activity of individuals regardless of their station in society are subject to the processes of the law and that the law stands ready to provide this relief. I would suggest to the Court that within this concept, the judgment below should be reversed and these respondents should be required to stand trial on the charges presented in this complaint. Thank you.
Speaker: Do you think a immunity -- ruling on the immunity section is possibly without a full development of the fact?
Arthur Kinoy: I don't think a definitive ruling is possible Justice Harlan without a development of fact and I think that that's exactly what Justice Wis -- Judge Wisdom was getting at.
Speaker: That's what I was referring.
Arthur Kinoy: That's' right. I think that a full development of facts is required here and that therefore this should be sent back for a trial on the facts. Thank you.
Earl Warren: Mr. Robb.
Roger Robb: Mr. Chief Justice -- Mr. Chief Justice and may it please the Court. The respondents stand on two propositions. First, when we say that the petitioners claim from damages here is based on the allegation that the respondents joined with state authorities in a conspiracy to deprive the petitioners of their civil rights by means of unlawful arrest, search -- searches and seizures. This is the fundamental essential allegation of the complaint. We submit as we did in the District Court and that Court agreed with us that the uncontradicted proof adduced on the motion for summary judgment demonstrated beyond any doubt that the respondents had participated in no such conspiracy, and accordingly that there was no genuine issue of facts of trial, now, putting the matter differently that in the event of a trial that these respondents would have been entitled to a directed verdict. Now second, in our view the Court need not reach the issue of legislative immunity. However, if the Court deemed unnecessary to reach that issue, we submit that that doctrine in this case precludes liability what damages is. The only act charged against these respondents in connection with this alleged conspiracy is the issuance of the subpoenas and the transportation of the records to Washington pursuant to the subpoenas. These acts, we say, were well within the scope of the proper legislative duties of these respondents and with that well protected.
Potter Stewart: That, even if that's true, if you're wrong about your -- on your first point then if they were as co-conspirators, they were co-conspirators in the -- in the -- in the unlawful seizure out in Louisiana then they are -- then they would still be liable even if they would have immunity of -- with respect to the issuance of the subpoena, wouldn't that be right?
Roger Robb: Yes, but I think that had to be something shown besides the issuance of the subpoena then there's nothing, nothing whatever. Nothing should --
Potter Stewart: Because there hasn't been a trial yet.
Roger Robb: I beg -- I beg your pardon?
Potter Stewart: There hasn't been a trial yet.
Roger Robb: No sir. But --
Potter Stewart: The complaint does alleged that the -- that they were members of this conspiracy.
Roger Robb: It alleges that -– yes, sir.
Potter Stewart: To -- to violate the Fourth Amendment rights and perhaps the First Amendment rights of the -- of the petitioners.
Roger Robb: That is correct on a motion for summary judgment, the allegation of the complaint is not enough, there must be something more.
Potter Stewart: I understand that.
Roger Robb: Now --
Abe Fortas: Mr. Robb, Excuse me, is that -- that certain -- that certain decision final? There's been no petition search --
Roger Robb: I don't know about that sir. I might say, at this point, I intended to say something about that. Mr. Kinoy has relied upon that. And the ground of that decision was as I read it, that, and this is page 134 of the appen -- of the brief of the petitioners. The ground of that decision was and Mr. Pfister made a statement to the press in which he announced that all the members of the committee had participated in this plan of raid. And the Court said and I quote, “If Pfister did make such statement the truth or falsity of the statement would bear on the accuracy of the committee members affidavits that they did not authorize the raids and in fact knew nothing of them before they would carry it out”. Now, in that case we have affidavits that our respondents didn't know anything about these raids and had nothing to do with them. And there was no countervailing evidence whatever. So our case differs from the Pfister case. Now, at the outset, I might say also that it is not true, it is not a fact that our Court of Appeals held or found or concluded that there were a disputed issues of fact with respect to our client's participation in this conspiracy. All the Court said was they might have deal with that question but they did not reach it in view of their other view of the case. Now, in support of our motion for summary judgment, we found out affidavits from all of the alleged conspirators, all the people who had knowledge of the facts. And the District Court also had before it on this motion, Mr. Sourwine's deposition which had been taken by the petitioners. The affidavits and the deposition on flatly and completely negated the allegation that the respondents had joined in this conspiracy. They demonstrated conclusively. But there was no such conservative action. The leader Senator Eastland and Mr. Sourwine had anything or whatever to do with the arrest of Dombrowski or the searches and seizures. That prior to the date when the raids were made, October 4, both Senator Eastland and Mr. Sourwine understood and believe only that the state authorities might subpoena the records of SCEF and they were not told and did not know that action by way of arrest warrants was even contemplated. But I say this was established by the affidavits of all of the persons having knowledge of the fact -- facts. Now, I might summarize the facts briefly because I think the statement by my friend, might perhaps be somewhat out of focus. The fact shown by the record were the 1955, the Senate Internal Security Subcommittee investigated SCEF and probably to report on SCEF and his apparent or -- apparent organization which was called the Southern Conference on Human Welfare. These reports --
Abe Fortas: Mr. Robb, excuse me but --
Roger Robb: I beg your pardon.
Abe Fortas: Page 5 of the brief here --
Roger Robb: Which brief is Your Honor speaking of?
Abe Fortas: I'm talking about the brief signed by the Solicitor General and you.
Roger Robb: Yes. Yes sir.
Abe Fortas: So you've got the Southern Conference for Human Welfare, a Communist front organization, should you call a Communist front organization, is that ever on the Attorney General's list?
Roger Robb: I don't know sir. But the we are quoting here from the subcommittee of report --
Abe Fortas: Who do you work?
Roger Robb: We are -- I'm referring here after investigation of SCEF, the subcommittee reported that SCEF had been established as an adjunct of the Southern Conference for Human Welfare. And that was based upon the testimony of (Inaudible).
Abe Fortas: And your brief is not suggesting that it is a Communist front organization then.
Roger Robb: Well, all I was saying is that this was in the report of the subcommittee which led Mr. Rogers when his committee began to investigate the same org -- same organization to get in touch with Mr. Sourwine. This is merely by way of showing why Mr. Rogers went to Sourwine. Now, in 1962, the state committee of Mr. Rogers, his committee, called this joint committee on Un-American Activities, started to investigate SCEF and knowing of the previous Senate investigation in 1954, in the Senate report, Rogers asked Mr. Sourwine for any information that he might properly give about SCEF. And Sourwine did give Mr. Rogers certain information from the public records of his committee which was proper. At this time Mr. Rogers told Mr. Sourwine that his committee might possibly subpoena the records of SCEF and if he did so and he found anything that was of interest to Mr. Sourwine's committee that he would let Mr. Sourwine know, this I think is an orthodox exchange of information between committees and investigators. Now there was no discussion in that specific records, membership records or otherwise. This is categorically stated in the record. Later about the middle of September ‘63, Mr. Rogers telephoned to Mr. Sourwine and asked him, in the event that the state committee did subpoena the records of SCEF could Mr. Sourwine and Mr. Mendel who is an expert on the stuff of the committee, come down and help to evaluate them. Mr. Sourwine took the matter up with Senator Eastland who told him that he and Mr. Mendel might go down if and only if it developed that the record subpoenaed related to matters within the scope of his committee's powers and jurisdiction and authority. That is the Communist or the Communist front activities and the sound that the record shows emphasized that the subcommittee had no interest whatever in material having to do with civil rights or racial matters. Now, nothing more on this matter at SCEF was heard from Mr. Rogers until October the 4th when he telephoned to Mr. Sourwine and told him the state committee had the SCEF material in his possession under subpoena and the material would be of great interest to Mr. Sourwine's committee. Now the record shows that after his talk with Mr. Sourwine in September, mid-September, Mr. Rogers and his committee had concluded on the basis of their investigation that SCEF was in violation of the state statute, and therefore that they would proceed by way of arrest and search warrants rather than by way of subpoena. Now, the record shows conclusive that neither Senator Eastland nor Mr. Sourwine knew anything of this decision. They weren't told about it, they weren't consulted about it and they had nothing more having to do with the resulting raids and arrest. There isn't a scintilla of evidence in the record to the contrary. In fact, Mr. Sourwine and Senator Eastland believed that at all times, prior to October 4, 1963, that if the state committee acquired the SCEF records, it would be done by way of subpoenas. And the first intermission they had to the contrary came in Mr. Rogers call on October 4. Now, my friend referred to an affidavit which is printed as an appendix to his brief from a deputy counsel or investigator of the state committee in which he contend shows that this plan to seize the records by arrest warrants was made in August. In the first place, that affidavit had dated over a year after the judgment in this case was entered. It does not apply in the record in this case. In the second place, I think if you look at the affidavit, you'll see that it does not -- it does not necessarily carry the implication which my friend contends that it does. All it says is that Mr. Rogers is going to talk to the state police and his own affidavit filed by us shows that he wasn't in touched with the state police and had examined their files prior to October. Now, as I said, Mr. Rogers asked Mr. Sourwine and Mr. Mandel to come down and they did go down. The next day, October 5, they looked over the material, thought it was of interest to their committee and thought it came within the scope of their committee's authority and therefore Mr. Sourwine calls Senator Eastland, told him this and Senator Eastland authorized him to fill out and serve the subpoena or subpoenas on the state authorities calling upon them to produce these records in Washington, October 29.
Earl Warren: The rules of the committee give -- give that power to -- to a man on the position of Mr. Sourwine?
Roger Robb: The -- the rules of the committee, may it please the Chief Justice, provided at that time that subpoenas could be issued by the Chairman and the practice of the committee at all times up until then was that the Chairman decided when the subpoena should be issued. These subpoenas were issued in accordance with the practice of the committee at that time. This was October the 5th. On December the 30th of the same year, our Court of Appeals in the Shelton case held that although the Chairman might issue these subpoenas, they had to be authorized by the full committee but this of course was after these subpoenas had been issued and served under the issuance held at the time they were issued were is in full accord with the practice of the committee at that time. And our position gently jumping ahead of that is that this was well within the scope of the legislative authority of the committee.
Earl Warren: Even -- even though the -- the subpoenas were in blank directed to no one?
Roger Robb: Yes sir.
Earl Warren: And referred to no particular records.
Roger Robb: They was -- they were filled in at -- filled in by Mr. Sourwine prior to service of course. They were --
Earl Warren: Yes but -- but after-- after they had been signed by the Chairman --
Roger Robb: Yes sir.
Earl Warren: Chairman.
Roger Robb: Yes sir.
Earl Warren: In other words, it was a blank --
Roger Robb: Yes sir.
Earl Warren: A blank subpoena --
Roger Robb: Yes sir.
Earl Warren: -- that he could carry around with him and determine when and where and on whom he should serve it.
Roger Robb: After he got the authority of the Chairman, yes sir.
Earl Warren: Yes. A general authority to -- to fill it in and serve it on anybody he want.
Roger Robb: After he got the Chairman's authority, yes sir.
Earl Warren: Yes, but that is the authority that the government gave him.
Roger Robb: Yes sir, that is correct.
Byron R. White: Well Mr. -- did he speak to Chairman -- Chairman Eastland about securing these specific records?
Roger Robb: Yes sir.
Byron R. White: And -- and the Chairman authorized to get this particular records.
Roger Robb: Yes. He telephoned --
Byron R. White: It wasn't any rule of the authority to him, this -- it will get any records you want him --
Roger Robb: Oh! No. No, not at all.
Byron R. White: And the -- the authorizations take this subpoena and go get these records except that they could not describe the specific records.
Roger Robb: Oh! They did describe the specific --
Byron R. White: I know, that -- but they were filled in last -- it was filled in later.
Roger Robb: That's correct.
Byron R. White: When the Chairman signed it they decided they could not describe it.
Roger Robb: That's correct. What happened, he test -- Mr. Sourwine testified on the deposition that the committee had filed a blank subpoenas signed by the Chairman. And that these were filled out from time to time when they arose, he took some of these with him to -- to the Baton Rouge where the records where. He examined the records preliminarily. He concluded that they were of interest to the committee and did come within the -- the scope of their authority. He telephoned Senator Eastland, told him what the records were in general and Senator Eastland authorized him then to fill out and serve these subpoenas. Now, again getting ahead of it, our position is that even though these subpoenas might technically have been invalid and my -- and even though this might have been a defense against a charge of contempt, it does not necessarily follow that the service of these subpoenas subjects these respondents to damages. The case is cited by our friend, Gojack case and other cases involved charges of contempt of criminal charges. And this Court has said several times that the fact that a subpoena might be invalid in the contracts of a criminal prosecution and justify a refusal or failure to respond, that fact did not necessarily mean that the persons who issued the subpoena must respond in damages. Now, they might say after the service of these subpoenas on October 5, Mr. Sourwine designated General Burbank, the Superintendent of State Police to be -- to be the custodian of the records attending their tracked petition to Washington. Mr. Mandel the record shows stayed behind to examine the records at some length. I might say all these records were returned to the petitioners in February 1965. Those events --
Potter Stewart: In the meantime, copies had been made up, aren't they?
Roger Robb: Yes sir,
Potter Stewart: And those copies are now where?
Roger Robb: They're in the possession of the Senate committee and not these respondents.
Potter Stewart: Just one set of copies or several sets made?
Roger Robb: Frankly, I don't know Your Honor. Now --
Potter Stewart: The record doesn't show. The record shows that one set of copies was made at least.
Roger Robb: Oh! I think so. The resolution which is in the record and it's printed at -- at page 36 of the record suggests that copies would be made that all of the original records obtained under the subpoena before the start with the permanent records of the subcommittee in (Inaudible) so-called the status.
Speaker: Has any have been published, printed?
Roger Robb: No sir. Now, as was pointed out by the Court here. On the 14th of November, the subcommittee voted in effect to ratify the actions of Senator Eastland and to make all these records as far as the committee thought that we don't necessarily argue that this was an ex post facto authorization of the subpoena. But we do argue that it certainly demonstrated that in issuing and serving this subpoena, these respondents were acting within the scope of the scope of their legislative authority. Now, coming for a moment to the matter of the removal of this material from the State of Louisiana about which my friend made not a vigorous complaint. As explained by Mr. Sourwine, his deposition and this is appeared at the records -- in the record at page 57. It was felt that the documents were in the possession of the United States Senate and if there were to be litigation about them, only Mr. Sourwine and Senator Eastland and the Senate should be involved and not Colonel Burbank who as Mr. Sourwine says wore two hats. One as head of the state police and one as custodian for us and he might become involved in an awkward situation. Secondly --
Abe Fortas: But was there any offer to Judge Ainsworth to deliver the records of this said order? In another words, as I understand the facts here, the records were -- in Louisiana in the possession, physical possession of the state officials.
Roger Robb: That's right.
Abe Fortas: And there was a proceeding on the way of Judge Ainsworth's courtroom. And he had issued an order noticing a hearing on a temporary restraining order for Monday. He issued the order on Friday presumably, Friday? And then some time in that weekend, the documents were taken away in a truck over to --
Roger Robb: That's correct.
Abe Fortas: -- across the state line and outside of the jurisdiction of Judge Ainsworth's court. Now, what I'm asking you is whether if the reason for this kind of -- or hopefully unusual action, the reason for this unusual action was to clarify the issues or avoid personal embarrassment of some other general purpose, whether any statement was ever made to Judge Ainsworth that the documents would be returned to his jurisdiction and made available to be disposed of as he might order.
Roger Robb: It would never a statement made by Senator Eastland to Mr. Sourwine. Now, I might point out to the Court that this telegram to which Mr. Kinoy referred and which is printed at page 54 of the record was not from Judge Ainsworth. It was from counsel for the petitioners and Mr. Brennan. And the telegram read Federal Judge Robert Ainsworth has requested your presence in his office 9:30 AM, October 28 to discuss an injunction and joining, turning over SCEF and Smith and Waltzer records to Senator Eastland. That was all Senator Eastland knew about it. He'd never been served by any process. He was never been notified by the Court and it was signed by Mr. Brennan. And Mr. Sour --
Potter Stewart: It was done at the request or certainly with the knowledge of Judge Ainsworth though was it not?
Roger Robb: That, I don't know sir.
Potter Stewart: I thought --
Roger Robb: I assume --
Potter Stewart: I thought the record shows that?
Roger Robb: -- that's not being thought so.
Potter Stewart: I thought the record shows that or at least the counsel represented that that Judge Ainsworth has to get in touch with the Senator. You say -- you say the record doesn't show that?
Roger Robb: I don't find it in -- in the record.Perhaps my friend can point it out if it's there.
Arthur Kinoy: 57.
Potter Stewart: And going back a bit. I can un – I understand this testimony on page 57, I guess it's Mr. Sourwine?
Roger Robb: Yes sir. I might say there's a mistake in that transcript. I -- I hope Your Honor has the correct copy of it, the last question and answer on page 57. Question, is it correct if the purpose of the removal of the documents must to put them beyond the jurisdiction of the Federal Judge in New Orleans. The answer in my print is, this is correct, it should be, this is not correct.
Potter Stewart: It should be this is not correct. I think we have that. There's another change in the --
Roger Robb: Yes.
Potter Stewart: -- next sentence I think. The United --
Roger Robb: Yes, the federal judge whatever had no jurisdiction under any circumstances because I might point out that certainly the records --
Potter Stewart: Senate.
Roger Robb: When they were brought to the District of Columbia as our friends have demonstrated were within the jurisdiction of the United State District Court for this district and I assume that that was known to Senator Eastland and Mr. Sourwine.
Potter Stewart: Well, at the time though of this testimony on page 57, the records were across the river or whatever boundary is that can cross in -- in Mississippi --
Roger Robb: Yes, across the state line, yes.
Potter Stewart: Across the state line of Mississippi. And the explanation by Mr. Sourwine is that -- would -- would be relevant to why he, Mr. Sourwine, took them into his possession but hardly relevant that's why it took him across the state line, wouldn't that be it?
Roger Robb: Well, he said that he -- he said frankly, that was in his mind that if anybody who is going to get sued it was going to be he and Senator -- him and Senator --
Potter Stewart: Well, they're going to fix it so he could then very well be sued on these records and in that Court.
Roger Robb: Well, he could be sued here of course.
Potter Stewart: So he's -- well, the result is he is sued here.
Roger Robb: Yes. Yes sir. He is sued here.
Potter Stewart: So I guess he got his wish.
Roger Robb: Now, I might say yes, that is -- that's one thing we're sure of. I might say also, may it please Your Honor, that we submit that this action which occurred three weeks after the arrest and the search and the seizures which are the gravamen of the complaint which are the gist to that action. These -- these are action in moving the records across the state line. It seems to us it's hardly enough to cast any substantial doubt on the uncontradicted proof that Senator Eastland and Mr. Sourwine had nothing whatever to do with the previous seizure of the records. This is not a lawsuit for moving records across the state line. It's a lawsuit for conspiring to bring about unlawful searches and seizures.
Abe Fortas: I -- I tried to pursue that within these questions very well with Mr. Kinoy. As I understand, his answers to my questions they are asserting this course of action for two independent acts and that is to say for the unlawful taking of the record by the Senate committee or Senator Eastland and Mr. Sourwine. They are asserting that that was unlawful that gives rise to a cross reduction --
Roger Robb: I know.
Abe Fortas: -- independently of the other, if I correctly understood you
Roger Robb: As I understand their complaint, Your Honor, their complaint is that -- that they alleged that this taking of the records across the state line was a part of the conspiracy. Not that it was an independent substantive cause of action. It was all part of the conspiracy.
Abe Fortas: I can stand that but he says that, “Let's suppose that the conspiracy were only to -- for the Mr. Sourwine and Senator Eastland to take the records after they have been unlawfully seized by the Louisiana officers. As I understood Mr. Kinoy's response to my questions, I maybe wrong. He says that that would give them a right to damages and foreign injunction.
Roger Robb: Well, that this is --
Abe Fortas: That's his contention as I understand --
Roger Robb: If this is his theory, it's a new theory that I never heard before because along this brief --
Abe Fortas: I -- I may be wrong about it but I assume -- that's why I ask him the question and that's what I understood his answer.
Roger Robb: Now, I might add that the -- the affidavits of Mr. Sourwine's deposition were not mere naked denials as our friend suggest but they were detailed in circumstantial statements by everybody who had knowledge of the facts of reciting exactly of what the relevant actions and statements of those people had been. And the evidence produced by our respondents was uncontradicted. The petitioners do not traverse a single fact that we relied upon except for taking Mr. Sourwine's deposition, they made no attempt to use the federal discovery procedure. They did not impeach any of our witnesses or attempt to do so. And I might point out that pursuant to the Rule 9h of the District Court, our respondents filed with their motion for summary judgment, the statement of the material facts as to which they contended, there was no issue. Their statement is in the record beginning at page 83 and recites in summary form the facts that I have mentioned here today. Paragraph 43 of that statement recites that neither Senator Eastland nor Mr. Sourwine had anything whatsoever to do with the acquisition of the SCEF material by the joint committee or with the preparation, issuance or execution of the arrest and search warrants where under the joint committee obtained the material to SCEF. Now, Rule 9h provides that the Court on a motion for summary judgment may assume that the facts recited in such a statement are admitted unless they are controverted by opposing statements and the petitioners filed no such opposing statement. In short, we submit and we have shown -- we showed by uncontradicted proof that the conspiracy upon which this suit is rested, never existed that the petitioners introduced no evidence casting a doubt upon the showing we made nor have they demonstrated any possibility that in the event of a trial, they could produce such evidence.
Abe Fortas: I suppose that what they're really saying --
Roger Robb: I beg your pardon?
Abe Fortas: What they're really saying may be, if I understand Mr. Kinoy, that they're entitled to go to a jury to see whether the jury will infer from the various meetings that were held that such a conspiracy or understanding did exist. That is to say that apart from any specific testimony that Mr. Sourwine and the Louisiana officials agreed that they would undertake this, they did have meetings and that they're entitled to go to the jury and see whether the jury will infer from the seeking effect of the meetings and the sequence of events that there was this conspiracy. What do you say to that?
Roger Robb: That's what they say, Your Honor. But I submit that you're not entitled to go to a jury on a mere gossamer -- gossamer web of suspicion which we've done an amount to prove it all. There had been a number of cases in the federal courts which we have cited in our brief on that point that one of the leading cases as taken by Judge Learned Hand which he said about what I've just said although in better language. That's our answer. Now, returning to the second branch of our argument and to be a matter of legislative immunity as we have pointed out, the only acts charged against the respondents in connection with this alleged conspiracy with the issuance of the subpoenas for the SCEF records and moving of the records to Washington and this conduct, we submit, was well within the scope of the official duties of the respondent and was therefore protected by the Speech and Debate Clause of the Constitution. As this Court stated in the great case of Kilbourn against Thompson, the purpose of the privilege conferred by the Speech and Debate Clause is to support the rights of the people or enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. Last time in the Johnson case, this Court said the privilege will be read broadly to effectuate its purposes. Accordingly, and we have seen from the cases, the privilege is not limited to speech or debate strictly as such but attaches to all things that are generally done in the session of the house by one of its members on the business before it and this includes investigation of outstanding committees or special committees. And as the Court has held or said in several cases, Tenney against Brandhove and the Johnson case, this privilege is not destroyed by allegations of proof of illegality or claim of non-worthy purpose. It protects the legislator so long as he acts in a field where a legislator traditionally have the power to act and is lost only when the acts of the legislator are nowise related to the due functioning of the legislative process.
William J. Brennan, Jr.: Does that rob off on the counsel too?
Roger Robb: I beg your pardon?
William J. Brennan, Jr.: Does that immunity rob off --
Roger Robb: I think it does.
William J. Brennan, Jr.: -- on the counsel?
Roger Robb: Yes, I think it should and does, yes sir.
Potter Stewart: Mr. Robb, are you relying on the -- on the Speech and Debate Clause itself or on the -- what I know is thought was a more broad -- broader and more generalized immunity but perhaps less complete of -- of Tenney against Brandhove and Barr against Matteo.
Roger Robb: Well --
Potter Stewart: -- upon which you're relying on both or do you think --
Roger Robb: We rely upon, so far as Senator Eastland is concerned, we think the issuance of this subpoena, these subpoenas was clearly within the legitimate sphere of his legislative activities and duties. We think that the activity of Mr. --
Potter Stewart: So with respect to him you're relying in a --
Roger Robb: Legislative --
Potter Stewart: Basically on the Speech and Debate Clause.
Roger Robb: Yes sir.
Potter Stewart: Not on the general doctrine of legislative immunity as found in Tenney against Brandhove --
Roger Robb: No.
Roger Robb: -- is that it?
Potter Stewart: Now, with respect to Mr. Sourwine, we say that all that he did in examining the SCEF records taking to Senator Eastland and recommend the issuance of a subpoena, serving the subpoena, causing the records to be moved to Washington. All of these things, the record shows were done by him in his official capacity as counsel for the subcommittee and they were all mattered generally committed to his control of the discretion as general counsel. We did nothing that went beyond the scope of his legitimate and proper duties and authority. And we submit --
William O. Douglas: Perhaps it should be tried if there is a question of the fact. That would be the issue.
Roger Robb: Yes, Your Honor. But there isn't any issue of the fact by us admitting that everything he did was in this capacity. Now --
Potter Stewart: And so what follows from that?
Roger Robb: We follow from this, if it please Your Honor, that as the Court pointed out in the Barr case and other case as Howard case, a committee on executive must acts through agents and assistance and counsel. This is a necessary corollary of the function of the government. And since this is true and we submit that since the must of necessity be a delegation of duties and deciding by legislators as well as executive, we submit that the agent of the legislator should partake of the same privilege of immunity which the legislator has.
Potter Stewart: That is on -- is he protected you say then by the -- explicitly by the Speech and Debate Clause or just by the general doctrine of legislative immunity?
Roger Robb: I would say partly by the general doctrine although it's six and one and a half does in the other--
Potter Stewart: No, I haven't understood that it was exactly six and one and a half does in the other. There's an overlap perhaps.
Roger Robb: Yes, I think.
Potter Stewart: The one that's more explicit and perhaps more complete and the other is broader and perhaps less complete.
Roger Robb: But I think it would be anomalous, may it please Your Honor, to hold that the deputy or ranked administrator which I think with Mr. Barr's provision --
Potter Stewart: Yes.
Roger Robb: -- would be immune whereas the general counsel of the congressional committee was not.
Potter Stewart: Immune with respect to defamation --
Roger Robb: -- damages --
Potter Stewart: Defamation in that case.
Roger Robb: Yes, damages.
Potter Stewart: Damages with defamation.
Roger Robb: Yes sir. I think it will be anomalous to hold that the deputy marshal who served the subpoena issued by the Court would be immune and there are such cases even though the subpoenas are invalid. Subpoena are served the process issued by the Court would be immune but a counsel of the same committee who served the similar subpoena would have to respond in damages. I think the same principle works in both cases, applies in both cases. Now --
Abe Fortas: But why do you make up a quote from Tenney against Brandhove on page 38 of your brief?
Roger Robb: Well, I said that --
Abe Fortas: Isn't that suggests a difference in the two?
Roger Robb: Well, if I -- if can't entirely understand that except that for a -- it says that the privilege extended to a legislator is entitled to a greater respect and not extend it a subordinate. I don't conceive that that says that the subordinate has no privilege.
Abe Fortas: No, but it says -- it says that the legislator -- the member of the legislature has a higher type of quality or something --
Roger Robb: Yes, Your Honor.
Abe Fortas: -- and privilege than where an official -- then -- then an official has who has many acumen on behalf --
Roger Robb: I can see how, may it please Your Honor, if you took this hypothetical question, I take it that for a no speech made on the floor of the Congress could a senator or a member of the House be sued and have to respond in damages for libel in those cases. However, I can conceive of a press release or speech issued by some subordinate which so far departed from the scope of his appropriate duties that he might be liable to damages. And I think perhaps that's what the Court is talking about.
Abe Fortas: Well, it did seem a little trouble here I'm afraid.
Roger Robb: I beg your pardon?
Abe Fortas: I said, I think that leads into some trouble here. I understand you get into a question as to whether their official get preliminary question anyway or whether the employee is acting merely as an peripheral ego or whether he has aired with little pepper and salt and wosterschire sauce and ingredients of his own.
Roger Robb: Well, if that's what you had, may it please Your Honor in the Wheeldin case, Wheelding against Wheeler. Wheeler issued a subpoena on his own without any authority from anybody, the chairman of the committee or anybody else and he was held liable whereas in our case, we don't have that situation. Of course, in the Kilbourn case. In the Kilbourn case, the Court held I think -- and I think the plain intendment of the Court's decision was perhaps the members of the committee and who had Kilbourn held in contempt actively participate in his arrest. They -- they would have been liable. But everything they did was within the scope of their legislative functions. Therefore, they were not liable. Now, we say here everything that Senator Eastland did and Mr. Sourwine did, came within the scope of their legislative functions. Let me make one thing perfectly clear. If I wasn't sure from Mr. Kinoy's argument on whether he was suggesting and I was contended that there's a proper function for unanimous state center or counsel for Senate committee to go out and make illegal arrest, searches and seizures, I'm contending no such thing. I certainly wouldn't -- wouldn't contend that there's such a thing. This is obviously not a legislative function.
Abe Fortas: Well, and that -- and that gets you into a problem because his contention is that the -- Senator Eastland and Mr. Sourwine took over appropriate for the uses of this committee if you will, papers and records which Senator Eastland and Mr. Sourwine by that time, I suppose, knew had been held to be unlawfully seized, is there -- by that -- by the time of it's proceeding before Judge Ainsworth it is true, isn't it, that there had been state court decision saying that this material was unlawfully seized. Is that right?
Roger Robb: I think -- I'm not sure.
Abe Fortas: Well, that's my recollection so that in -- in terms of the sequence of events, if I understand Mr. Kinoy. He is saying that Senator Eastland and Mr. Sourwine deliberately took over papers and documents that had been unlawfully seized and would you draw a distinction between that and the -- the service of an -- a direct service of an unlawful -- that directs an unlawful seizure of documents?
Roger Robb: Oh! Certainly. And I don't think, may it please Your Honor, that you can reason ex post facto so to speak and because -- because Mr. Sourwine and the committee took over these papers after the raid that therefore they must be held responsible for whatever happened on the raid.
Abe Fortas: No, I am assuming that they took over the papers though after their administrative adjudication.
Roger Robb: Precisely. But -- but --
Abe Fortas: That the raid was unlawful.
Roger Robb: Precisely. But the gist of the complaint is that they participated in the conspiracy to make the raid. And this happened after the raid. Now, the petitioners have not produced a scintilla of evidence that these -- these respondents knew anything about the raid, had anything to do it. And they won't be able to produce any such evidence on trial. They may hope to but -- but they've had every opportunity to do so. Now, there were some reference made in taking Senator Keating's deposition and that Mr. Kinoy came into Court the day of the argument on the motion for summary judgment. The letter from Senator Keating which is in the record here which -- in which he protested against the -- that issuance of these subpoenas and appeared to Mr. Kinoy and his co-counsel had known about this for weeks and haven't done anything about it. In any event, the letter is completely irrelevant. These petitioners had every opportunity to explore, to take depositions, and to get -- and to bring in evidence but they brought in nothing whatever to contravene all statements of facts. On these grounds, may it please the Court, first that the uncontradicted proof shows that these petitioners have nothing to do with this conspiracy which is the gist of their case and second, that the issuance of the subpoenas and the taking of the records to Washington pursuant to those subpoenas was well within the legitimate scope of their legislative duties and therefore privileged, we submit that the Court ought to be affirmed, lower court should be affirmed.
Earl Warren: Mr. Kinoy.
Arthur Kinoy: May it please the Court. I just have a few remarks to make in rebuttal. I think the issue is a rather fully and complete before the Court. Just on a factual question, the Court addressed the question as to whether the telegram to the senator was on the directions of the judge and the transcript on page 29 has a affidavit which says, “On instructions from Judge Ainsworth to notify the other parties to be present in his office at 9:00 AM on the morning of Monday, October 28, for the purpose of discussing the request for temporary restraining order. Telegrams were sent to all of defendants, Green, Burbank and Willie.” That's in -- on page 29 of the record. The telegram was sent at the instructions of Judge Ainsworth. That affidavit has never been controverted. I just have one or two other remarks that I would like to make. A suggestion has been made that perhaps in some way, the doctrines developed by this Court in Barr, the immunity doctrines, may save the respondents here. I would just like to point out that as was mentioned by the Court, the question in Barr was of course tort and liability on defamation. There was no intimation in Barr to the slightest degree in the opinion of the Court or in the dissenting opinions that the Court would have take the same view toward a charge of participation in an illegal search and seizure. The opinion, the majority opinion in Barr is very clear that what the Court is there talking about are acts, normal ordinary business acts in the course of the conduct of the government business and I don't think the Court in the majority of dissent in Barr would have ever intimated that the participation in the illegal search and seizure would be the kind of activity which would invoke under any circumstances a man told of immunity under Barr and it's a matter of fact the --
Abe Fortas: I don't understand, and Mr. Robb contested that. I didn't understand that your -- Mr. Robb contested that proposition.
Arthur Kinoy: Well, I would think that if Mr. Robb --
Abe Fortas: I may be wrong but that's the way I understood it.
Arthur Kinoy: Right. I think -- I -- in any event from their arguments, I think the respondents have been asserting that concept but even if Mr. Robb does concede that, I would say then clearly that the issue there is one of whether or not the acts here presents a contested issue of facts as to participation in the illegal searches and seizures or the fruits of the illegal searches and seizures. Now, in that respect, I don't think that the respondents here have responded -- have answered to the simple proposition brought forth by the Court in Kilbourn, because Kilbourn is quite clear that the use of the warrant of arrest by the sergeant was no protection in immunity to tort liability. I think the analogy is very clear here for the warrant of arrest and to the subpoena. Now, finally, I would suggest that at least as I listened to the argument of Mr. Robb, there would seem to be no direct reputation of the simple record fact that the respondents here at a minimum engaged in activity taking the records out of the jurisdiction of Louisiana knowing that these were the fruits of an illegal search and seizure. The record is perfectly clear about that. The Louisiana Court has so ruled in which it is perfectly obvious that they were illegally seized fruits of a search and seizure. I would suggest on two scores, one, that it's black letter conspiracy law. That fact showing the participation in the fruits of the conspiracy are certainly admissible to show the co-conspirators' knowledge of the conspiracy and the participation in the conspiracy and the second, this black letter law in respect to the laws of the Fourth Amendments, that the participation in the fruits of the illegal search and seizures are unconstitutionally void as the seizure itself. Thank you very much.
Abe Fortas: Mr. Kinoy, the state court decision holding the search and seizure illegal prior to the proceedings before the citation--
Arthur Kinoy: On Friday.
Abe Fortas: Sir?
Arthur Kinoy: In Friday of our -- of the -- the removal was on Sunday. The state court decision was on Friday vacating these warrants of arrests.
Abe Fortas: And the proceedings before Judge Ainsworth are when?
Arthur Kinoy: Sunday morning when he directed a telegram and Monday morning before on the TRO, yes.
Potter Stewart: Mr. Kinoy, how about the equitable part of your course of action, your injunction. You haven't spoken of that or you have missed it?
Arthur Kinoy: No, I -- I think, that's argued in full in the brief with just a word on that Justice Stewart since you raised the question. I think that the argument of the respondents make it very clear why the equitable course of action was essential. We ask simply for an injunction ordering the return of the illegally seized records and that copy should not be used. We asked for that in the District Court here in Washington. In the District Court in Washington, we were told by the respondents and the courts that we had -- there was no power, no jurisdiction or power in the District Court to restrain a congressional committee. The Circuit Court did not follow that approach because we were asking for an injunctive relief against the individual respondents. They concede it that an injunction would lie against the individual respondents but they said it would be futile to give us that remedy because unilaterally the individual respondents had said that they had no copies of the documents and records but it was in the Senate committee. This was --
Potter Stewart: That -- that the originals and -- and mine is wrong in thinking that the undisputed facts are, that the originals have been returned to your client.
Arthur Kinoy: That's right.
Potter Stewart: And that the copies are in the possession not on these respondents but rather of the Senate --
Arthur Kinoy: No, Justice Stewart. That's -- that's the heart of the matter on the equitable relief. That fact was totally disputed. We don't know. Mr. Robb was unable to answer the question as to how many copies of the record there are.
Potter Stewart: Well --
Arthur Kinoy: We don't know.
Potter Stewart: Well, isn't the -- aren't there statements under oaths which are uncontradicted to the effect that those are the facts?
Arthur Kinoy: Justice Stewart, we had no opportunity contradicting that --
Potter Stewart: No, just --
Arthur Kinoy: No.
Potter Stewart: Could you answer the question?
Arthur Kinoy: There are statements that those were the only records, yes Justice Stewart.
Potter Stewart: Under oath?
Arthur Kinoy: Under oath. We had no opportunity to controvert those because the District Court on the request for TRO dismissed the equitable complaint not on this factual issue but that he had no power.
Potter Stewart: I understand. But the Court of Appeals did on the factual issue, saying the facts are undisputed.
Arthur Kinoy: That's right, and our position simply on that is that we are entitled to a hearing on that.
Potter Stewart: I see.
Arthur Kinoy: Yes sir.
Potter Stewart: You don't -- you don't take issue and I -- I suppose you couldn't do with the proposition that if the facts are as represented, your injunction has to fail because it -- it would work --
Arthur Kinoy: No, we don't make issue.
Potter Stewart: -- would be impossible (Voice Overlap)
Arthur Kinoy: We say we are entitled to a hearing on that question.
Potter Stewart: Right.
William J. Brennan, Jr.: Mr. Kinoy, may I ask you just one question. And that's the fact which I'm not quite clear of significance of your fruits argument. Are you arguing number one that these respondents in fact participated in the illegal conspiracy?
Arthur Kinoy: Yes, Your Honor.
William J. Brennan, Jr.: But if they did not, nevertheless, that they are truly participating in the violation of the Fourth Amendment because with knowledge that these materials had been illegally seized. They took advantage of --
Arthur Kinoy: Mr. Justice Brennan, that --
William J. Brennan, Jr.: -- if I can get them.
Arthur Kinoy: That's an alternative --
William J. Brennan, Jr.: It's an alternative argument.
Arthur Kinoy: An alternative argument and a subsidiary argument. Third, I would say Justice Brennan that we argue that this is additional evidence which would be admissible on the original conspiracy.
William J. Brennan, Jr.: But suppose if you are not entitled to hearing on the issue of the original conspiracy on this alternative argument to gather the facts of already has found to blow that they did have knowledge, that they have been illegal --
Arthur Kinoy: It would seem so,Your Honor, yes.
William J. Brennan, Jr.: Well, because of -- I forgotten though it come out very similar with Dombrowski and Pfister but what were the dates of those seizures in relation to the date of the subpoena.
Arthur Kinoy: Yes.
William J. Brennan, Jr.: Were they before?
Arthur Kinoy: The seizures were on October 4.
William J. Brennan, Jr.: And when was -- when was the Louisiana Court decisions question the --
Arthur Kinoy: On the 24th --
William J. Brennan, Jr.: Of October?
Arthur Kinoy: 24th of October, the arrest warrants request, yes.
William J. Brennan, Jr.: And these -- and these -- and these subpoenas are dated when?
Arthur Kinoy: The subpoenas were dated October 4th, the same time. There is some conflict -- confusion in the record as to the state of court --
William J. Brennan, Jr.: Well, but what I want to get clear is the actual action of the Louisiana courts questioning the arrest warrants was subsequent to the seizures of these materials.
Arthur Kinoy: That's right. Subsequent and the action of the respondents removing them from the jurisdiction were after the action of the Louisiana Court.
William J. Brennan, Jr.: Well, you mean of -- of removing them, that Sunday night, what date was that?
Arthur Kinoy: That was the 27th.
William J. Brennan, Jr.: This was after the action of the Louisiana Court question the respondents?
Arthur Kinoy: That's right.
Byron R. White: But the -- the actual service of the subpoenas was before the action?
Arthur Kinoy: That's right, Your Honor.
Byron R. White: Which commanded the state officials to turn them over?
Arthur Kinoy: That's right.
Byron R. White: So your argument would be that even if the documents had been specifically listed in the subpoenas and then signed by Senator Eastland and even if there had been no contact whatsoever between the state and federal officials up until -- until after the seizure by the state officials and then the federal people were notified and then they issued a subpoena, even so you would say you were entitled to recover because they knew when the service -- not when they serve the subpoena but when they actually removed them.
Arthur Kinoy: That's right, Justice White.
Byron R. White: That they have been improperly seized?
Arthur Kinoy: Yes. I would argue that also. I don't necessarily have to reach that but I would argue, yes.
Speaker: With due respect to (Inaudible).
Arthur Kinoy: That's right Your Honor, about the removal from one place to another I think adds great inference and weight to the conclusions.
Earl Warren: Very well.
Arthur Kinoy: Thank you.