Warren E. Burger: We will hear arguments first this morning in 73-157, Calero-Toledo against Pearson Yacht Leasing Company. Mr. Coleman, you may proceed whenever you’re ready.
Lynn R. Coleman: Mr. Chief Justice and may it please the Court. My name is Lynn Coleman. I appear as special counsel for the Commonwealth of Puerto Rico, both of the appellants in this case being officials of the Commonwealth. This is an appeal from a decision by the District Court of Puerto Rico sitting as a three-judge Court which declared unconstitutional a portion of the Controlled Substances Act of the Commonwealth as well as the uniform seizure and forfeiture statute of the Commonwealth. The ground for this decision was that these provisions were unconstitutional on their face in that they fail to provide for notice and an opportunity for hearing prior to a seizure in connection with a forfeiture proceeding and that, from a substantive standpoint, they provided for the taking of the property of a person who was innocent of the crime for which the property was seized and the court in so holding rely them to fairly recent decisions of this case of this case -- this Court, Fuentes versus Shevin, and Coin and Currency. The particular brief statement of the facts involved would be that Pearson Yacht Leasing Company leased a yacht to a man named Olson which, in our brief, we referred to as the lessee. The lease is, in many respects, familiar to -- similar to a conditional sale in that the lessee would enjoy full possession of the vessel. The lease was for a five-year term. The lessee had the obligation to pay rent, that obligation would not cease in the event anything happened to the boat specifically indicating that forfeiture would be one of the events which would not interrupt the lessee’s obligation to pay rent. The lessee had to insure the interest of the lessor against all eventualities. The lessee was obliged to use the boat only for lawful purposes and alike. It contained provisions which you would expect to find in a conditional sale contract or in a conventional mortgage if the seller of products had elected to allow his vendee to take title and, instead, reserve a purely security interest.
Warren E. Burger: Are you suggesting, Mr. Coleman, that if there were a mortgage -- if there’d been a full transfer and a mortgage back, that is the title had passed and the mortgage back, that this forfeiture would then wipe out the underlying security?
Lynn R. Coleman: I don’t know that it would have in this case, Your Honor. The court below treated the lessor as if he were the owner of the vessel and really did not examine the kind of a case which you would have where you have parties, both of them have some interest in the vessel. I think that the effect of the Puerto Rican statute and many other statutes, both of the United States and other states, could be to -- in a forfeiture proceeding, to forfeit effectively the interest of the mortgagor.
William H. Rehnquist: Isn’t it right, Mr. Coleman, in this case, the lessee could buy the thing for a dollar at the end of --
Lynn R. Coleman: Yes, $1 after the end of 5 years. That’s true.
William H. Rehnquist: So it’s virtually indistinguishable from a conditional sale?
Lynn R. Coleman: I think that’s true. In any event, the lessee was found in possession of marijuana. Presumably, he was arrested in criminal proceedings instituted against him. Some time after that discovery of marijuana on the vessel, it was seized pursuant to the statute. The statute operates in this way. There must be a determination by a high governmental official, either the Superintendent of Police for the entire island, the Attorney General of the Department or the Secretary of Treasury in Puerto Rico that there has been an offense for which the property becomes forfeitable. The offense is described in the Controlled Substances Act. Process is issued by such officer and pursuant to that, the vessel is seized without notice. Within 15 days -- I mean, immediately notice is to be given, within -- and the -- it’s to be given to all owners, all persons who are known to have an interest, within 15 days, they can challenge the seizure and forfeiture by instituting proceedings in the Commonwealth Courts. The lessee was notified. He was on record with the Puerto Rican authorities as the owner of the boat. The Puerto Rican authorities presumably had no knowledge of the lessor’s interest. The lessor consequently was not notified. He did not discover the seizure and forfeiture of the vessel until some months later when it elected to sue in Federal Court rather than in the Commonwealth Courts pursuant to the statute.
William H. Rehnquist: Under the Puerto Rican statute, could someone having a property interest in the vessel who was not in possession of it have registered under this Puerto Rican statute and then been notified at the time of the forfeiture?
Lynn R. Coleman: I believe so. I think the -- that registration statute, the form which there is registration, provides for other owners. The record is really silent on that though, Your Honor. Before proceeding to the burden of my argument, I would like to mention one thing. The Solicitor General filed a brief in this case, which I think is very excellent help for brief this past Friday. It particularly places in perspective the impact of an affirmance of this decision on a number of federal laws. There is one thing that we -- I would call attention to. On page 5 of the Solicitor’s brief in a footnote, it is stated that the statutes involved were challenged as violating both the Fifth and the Fourteenth Amendment. The court below, in its holding, made no distinction whatsoever. They based it on due process of law and a concept of taking without just compensation without specifying either the Fifth or the Fourteenth Amendment. The Solicitor then says it has been held that, to the extent the constitution applies directly to the laws of Puerto Rico, they are subject to the Fifth Amendment. A 1947 decision of the First Circuit is cited. That case does hold then that that, of course, was before the Commonwealth was created in 1952. We suggest that that makes a substantial difference. Since the creation of the Commonwealth, the First Circuit has consistently declined to decide that question as to whether the Fifth or the Fourteenth Amendment is applicable. So has this Court in the only other case to come directly from the Commonwealth to this Court, that being the Fornaris case which was decided about three years ago. The Commonwealth did not brief this question. We do not regard as essential to a determination in this case whether the Fifth or the Fourteenth Amendment due process is applicable to the Commonwealth. It has been true and accepted for many years that due process fully applies in the Commonwealth.
William J. Brennan, Jr.: It fully applied, could it?
Lynn R. Coleman: I’m not sure, Your Honor.
William J. Brennan, Jr.: What is it? Is Puerto Rico a state?
Lynn R. Coleman: Well, there could -- there can be, I think, a respectable analysis made that it is before the --
William J. Brennan, Jr.: Well, it treats -- we treat it like a State Court on other purposes?
Lynn R. Coleman: Yes.
William J. Brennan, Jr.: We treat judgments of the Supreme Court of Puerto Rico, I’m sure that’s what we do.
Lynn R. Coleman: Yes.
William J. Brennan, Jr.: Treat judgments of the states, but can anyone really argue that Puerto Rico is a state?
Lynn R. Coleman: Well, I would not attempt to argue it now, Your Honor. If this subject were to be gone into, we would ask leave to file a supplemental brief. I think it’s very complicated. There are also problems with the Fifth Amendment.
William J. Brennan, Jr.: Well, do you have to if the Fifth applies? It’s a territory, for the purpose of the constitution, and not a state.
Lynn R. Coleman: Your Honor has put his finger on the point. The question is, is it a territory? The -- when the Commonwealth was created, it is the view generally, I think, of the Commonwealth that it is not longer a territory.
William J. Brennan, Jr.: I know, but it’s purely a congressional Commonwealth, isn’t it?
Lynn R. Coleman: Well, I --
William J. Brennan, Jr.: That’s just the way that that was given.
Lynn R. Coleman: I don’t think that that would be can absolutely agreed to, Your Honor.
William J. Brennan, Jr.: I know that. I’ve been in Puerto Rico. I know some controversy about that.
Lynn R. Coleman: What I’m suggesting merely is that a proper determination of that issue would involve a very detailed analysis of the creation of the Commonwealth. It would have implications far beyond this case where those implications are not now before the Court. It does not appear --
William J. Brennan, Jr.: I still, for the life of me, can’t see how it could ever be a fake one when it’s not been admitted to the Union.
Lynn R. Coleman: Well, it is certainly not a state of the Union --
William J. Brennan, Jr.: It certainly isn’t.
Lynn R. Coleman: But as to --
William J. Brennan, Jr.: I don’t see how the Fourteenth Amendment which applies only the States of the Union apply to Commonwealth of Puerto Rico?
Lynn R. Coleman: Well, I would not attempt to go into that this time.
Byron R. White: Well, does it have to be one of the other in order to sustain jurisdiction of this Court to review judgments of the Supreme Court of Puerto Rico?
Lynn R. Coleman: I would assume that it would, Your Honor. But, I don’t know that it’s necessary to decide which. It’s been --
Byron R. White: Yes, so we don’t really care which it is right now, do we?
Lynn R. Coleman: I don’t believe you do.[Laughter] I just wanted to clarify that since the Solicitor had made the --
Byron R. White: Well, we haven’t.
Warren E. Burger: You want to clarify the existence of the problem rather than the --
Lynn R. Coleman: That’s exactly right. I’ve hardly clarified it here. We submit that the court below’s holding that notice and hearing prior to seizure are constitutionally necessary by way of this Court’s decision in Fuentes v. Shevin was wrong. We think that that is an unauthorized extension and undue extension of a holding. First of all, there’s a serious question whether Pearson could have standing to complain of seizure to assert that they were constitutionally entitled to notice and hearing, assuming such a requirement were to exist because Pearson had no possessory interest in this yacht. The yacht was in the possession of the lessee pursuant to the lease. Under Puerto Rican law, there is no change of title in a forfeiture proceeding until a forfeiture occurs through the yacht’s temporarily in possession of the Commonwealth. We do not see that that seizure itself affected the rights of the lessor. And so, I would think there’s a serious question of standing initially on the merits.
William H. Rehnquist: On referring to the lease, you say that the seizure as opposed to the forfeiture didn’t impair the lessee’s obligation to pay rent to the lessor, so --
Lynn R. Coleman: Nor did forfeiture, Your Honor.
William H. Rehnquist: Yes.
Potter Stewart: But forfeiture did change the ownership, the basic ownership, and seizure did not?
Lynn R. Coleman: That’s true.
Potter Stewart: You say that during the term of the lease the lessor wasn’t entitled to possession anyway so that the change of possession didn’t affect him at all?
Lynn R. Coleman: That’s right.
Byron R. White: And he had a hearing for forfeiture or an opportunity for a hearing for forfeiture?
Lynn R. Coleman: That’s true.
Potter Stewart: Well, as I understand it, he had an opportunity if he’d been given notice in 15 days, there was a 15-day limitation.
Lynn R. Coleman: Of course, there’s a question. It stipulated that he was never note that -- the lessor was never notified pursuant to the statute.
Potter Stewart: Right.
Lynn R. Coleman: He obtained actual notice.
Potter Stewart: Within 15 days?
Lynn R. Coleman: No, no. But, the Puerto Rican courts have said the 15 days doesn’t run until the person involved was actually notified. So now, if notice pursuant to the statute is required, then he haven’t been notified yet. If actual notice would’ve sufficed, 15 -- after he found out about it, more than 15 days elapsed before he decided to go to Federal Court. We argue in our brief that he really is not entitled to complain of forfeiture either for that reason, that he forwent the rights that the Puerto Rican statute confers upon him.
Potter Stewart: Do you say that it has been judicially determined that that 15 day-period doesn’t begin to run until there’s actual notice?
Lynn R. Coleman: Until there’s notice. Whether actual notice will suffice, I’m not sure, but it may be that only notice by the -- formal notice by the Commonwealth pursuant to the statute will suffice.
Potter Stewart: Now if that’s true, the period hasn’t begun to run yet?
Lynn R. Coleman: That’s exactly right.
Potter Stewart: Is that right?
Lynn R. Coleman: Yes.
William H. Rehnquist: If one takes the strictest possible view of the Puerto Rican forfeiture statute, that is, that it forfeits the interest of a totally innocent owner upon compliance with a statutory. What substantive arguments could a person in Pearson’s position make at this hearing?
Lynn R. Coleman: They would be restricted to arguing that either the crime was --
Byron R. White: There wasn’t any marijuana?
Lynn R. Coleman: There wasn’t any marijuana or something of that nature, that’s true. We, at another point of our brief, make the point that, in our view, the Puerto Rican Supreme Court would’ve been quite free to reconsider a 1967 holding that the statute would allow the forfeiture of the property of an innocent person. And, that in light of the very strong tradition in this Court of giving deference to State Court determinations, and there’s a particular line of cases with respect to the Commonwealth where it appears that an extra major deference might be justified.
Byron R. White: What does the Puerto Rican Government do to forfeited vessels? Do they sell them?
Lynn R. Coleman: They have the option of selling them or retaining them.
Byron R. White: Do they normally just sell them?
Lynn R. Coleman: I think, normally, they sell them. I’m not advised of it.
William J. Brennan, Jr.: Maybe obtain this one for personal use of officials or something?
Lynn R. Coleman: Actually, the retained it pending the outcome of this case. In other words --
William J. Brennan, Jr.: I know, but didn’t I read somewhere that officials are making use of it?
Lynn R. Coleman: No. It’s been retained, Your Honor, but I don’t think it’s for official use. It’s a sailboat. It wouldn’t be very usable by an official. They have not elected yet to sell it. There’s no time limit in the statue on when they have to make the election. To go to Fuentes versus Shevin, in that case --
Warren E. Burger: I suppose this case in its present posture would be the same if they -- whether they found marijuana, heroin, or machine guns that were being run to or from Cuba or --
Lynn R. Coleman: That’s exactly right.
Warren E. Burger: -- whatever?
Lynn R. Coleman: That’s why the case is very important to the Commonwealth. The uniform seizure and forfeiture statute brought together all of the seizure and forfeiture provisions in disparate parts of Puerto Rican Code. And declaring this statute, on its face, unconstitutional just puts an end to seizure and forfeiture proceedings, I think, is a practical matter in Puerto Rico. If you have to have notice before you can seize property, in connection with a criminal matter in leading to a forfeiture proceeding, the seizure statutes, I believe, are going to be -- have their practicality seriously impaired. But, in Fuentes versus Shevin, this Court struck down the Pennsylvania in Florida prejudgment replevin statutes, a ground that they authorized the taking of property, even though for a short period of time, without opportunity for notice and hearing. There, the creditor could invoke process of the state to retrieve property in the possession of another private person solely on the basis of his own affidavit, solely on the basis of an ex parte proceeding before the clerk of the court. The court carefully distinguished other situations where seizure without a prior hearing was justifiable. It also carefully distinguished seizure pursuant to a warrant. In our view, seizure under this statute where there must be a determination by a responsible official, where there must be processed issue is very similar to seizure under a warrant, though not the same thing. And, in Fuentes, the Court identified three criteria which have generally been used to describe those areas where there could be seizure in advance of a hearing and that is, is there an important governmental interest served, was the first criteria and I think that, clearly is satisfied by seizure statute looking to a forfeiture.
Byron R. White: Was this vessel just stopped and boarded? Is that the way it is?
Lynn R. Coleman: The record does not disclose that, Your Honor.
Byron R. White: Well, is there any intention made that the officials had no right to go on the vessel at all?
Lynn R. Coleman: I don’t think so.
Byron R. White: Or is it challenged that there was marijuana found or not?
Lynn R. Coleman: No.
Byron R. White: So, are we to assume that the vessel was properly boarded and marijuana was found in judging this case?
Lynn R. Coleman: I believe so. It’s stipulated by both parties that the officials acted in punctilious compliance with the statute.
Byron R. White: And the parties were arrested?
Lynn R. Coleman: Yes.
Byron R. White: Was there any challenge to their arrest?
Lynn R. Coleman: Not on this record. The second criteria identified in Fuentes versus Shevin, as justifying seizure without a hearing, was the need for promptness, I think that obviously applies to a seizure proceeding. The third was that there’d be no abdication of state power. In Fuentes, state power could be invoked solely by private persons for private gain without any determination whatsoever of a -- is probably correct. Here, however, there is a determination by a high government official that an offense has been committed. The property has been used in connection with a crime and the process must be issued. We think that this case is clearly within the guidelines expressed by Fuentes which would justify a seizure without prior hearing. We think this case -- this Court’s decision in 1971 in U.S. versus Thirty-seven Photographs would also clearly justify a seizure prior to hearing in connection with a forfeiture proceeding. So, our conclusion is that that part of the court’s decision was clearly an error.
Byron R. White: Well, what -- you don’t suggest a hearing -- that no hearing at all was required?
Lynn R. Coleman: No, no, no. I think a hearing -- I mean, a hearing is provided by statute and a hearing is provided before forfeiture.
Byron R. White: Yes.
Lynn R. Coleman: And I think there’s provision that the hearing be very prompt following up on the seizure. I think that satisfies the constitutional requirements. With respect to the court’s holding that this Court’s decision in Coin and Currency is to the effect that the forfeiture provisions of the Puerto Rican law must, in necessity, be unconstitutional because they authorize the taking of a person’s property if he was innocent of the crime for which the property was -- or at least we think that is clearly an error as well. First, as I mentioned a moment ago, there is again a standing question because Pearson elected not to avail himself of the opportunity presented by the Puerto Rican law to within 15 days of notice, be that pursuant to the statute or after actual notice, to go to court and assert his rights. We also believe that if they think that it was crucial to their rights that they’d be able to show that they were innocent of the crime and that that defeat the forfeiture, that that would be a question which certainly could be litigated in the Puerto Rican courts. The statute does not say you can take the property of one innocent of the crime, the statute is silent on that. It is presumed that that is permitted under the statute. However, there had been two other exceptions recognized to the statute for which there is no authority in the statute itself. Those are, if the property were a common carrier or if the property were stolen from the lawful owner. Those are --
Byron R. White: But the lower court construed it as authorizing the taking of an innocent party?
Lynn R. Coleman: The Puerto Rican Supreme Court enact in 1967 and --
Byron R. White: But then, in this case--
Lynn R. Coleman: In this Court, the --
Byron R. White: In this case?
Lynn R. Coleman: I’m sorry.
Byron R. White: In this case?
Lynn R. Coleman: That’s right and on the strength of that decision, Your Honor, this Court said that there was no other way to construe the statute.
Byron R. White: Well, are we about to disagree with him? Are you suggesting we disagree with the District Court?
Lynn R. Coleman: No, but my primary argument of course, Your Honor, it would be a wrong construction should the court view the constitutional requirements as being such, that this defense must be permitted. I think that there is that, under the principles of construing a statute to preserve its constitutionality they would’ve been required to take a look at the statue and they wouldn’t of necessity have to abide by that construction. There was an argument earlier in this case that the District Court should have abstained to allow the court, the Supreme Court of Puerto Rico, to past first of the question. The Commonwealth withdrew its objection to the calling of the three-judge court. We are not here arguing that abstention was required, but I think that there was a duty on the court to attempt to save constitutionality of the statute if it thought it necessary. But, on the merits of the Coin and Currency question, we do not think that Coin and Currency reached this question at all. Justice Harlan there did say that there could be a question under Fifth Amendment whether a statute authorizing the taking of one innocent of the crime could be squared constitutionally. He said it is not necessary to decide that question. There was specifically no overruling of the many decisions of this Court which in the past have upheld that kind of a result. Certainly, it’s true that, early on, a forfeiture of one who had entrusted his property to one who then committed a crime was justified on the ground, in which this Court has regarded as fictional, that the property was the offender. Now, I think though that there’s some significant justification in terms of current realities that are very closely related to that fiction, that is, if that the state needs to be able to attack in effect the capital goods of crime. In a smuggling operation, for example, the airplane, the vessel, or the truck or whatever may it be far more important and the individual driving it. And, if -- and it’s an effective tool to be able to reach that vehicle. Now, there’s hardly any vehicle in the United States that is not subject to some outstanding security interest. If the state -- if forfeiture of this vessel can be defeated by undisclosed outstanding security interest, then I think that the forfeiture statute’s effectiveness would be seriously impaired. The people in the position of Pearson have ample opportunity to protect themselves. They anticipated the risk of forfeiture. They provided for insurance. They provided for continuance of the lease payment and it is not unfair nor, in my opinion, does it violate the constitutional requirements that their property be taken.
Warren E. Burger: But suppose they could’ve required a bond of some kind?
Lynn R. Coleman: The statue does provide for bond.
Warren E. Burger: In addition to what they have here?
Lynn R. Coleman: Yes, they could.
Harry A. Blackmun: Supposing, it views about one thing, in your appendix, I take it on page 29 is the memorandum opinion and order of the court.
Lynn R. Coleman: That’s true. Well, that’s on page 19 of the appendix accompanying -- that’s right. It is on that particular --
Harry A. Blackmun: In the appendix and yet in the index part you state that the memorandum opinion is not reprinted in the appendix. And I want to be sure that the print in the jurisdictional statement and what begins on page 29 are one and the same.
Lynn R. Coleman: That’s true.
Harry A. Blackmun: So that the statement in the index is incorrect?
Lynn R. Coleman: That’s right. I don’t have an explanation.
Harry A. Blackmun: While the other side speaks of a deal within the District of Massachusetts, so maybe you’re even.[Laughter]
Warren E. Burger: Mr. Gelpi.
Gustavo A. Gelpi: Mr. Chief Justice Burger and may it please the Court. Before starting, I would like to clear out the error in the printed brief regarding or mentioning the District Court of Massachusetts when it should clearly be the District Court of Puerto Rico. There is an additional printing error on page 3.
Warren E. Burger: Of which document?
Gustavo A. Gelpi: Of appellee’s brief. The fifth line from the bottom, instead of “of” the second of, it should be “or.” And, on page 9 --
William J. Brennan, Jr.: I didn’t get to that. That’s page 3?
Gustavo A. Gelpi: Page 3, the fifth line from the bottom.
William J. Brennan, Jr.: And what’s the word?
Gustavo A. Gelpi: It should be “or” instead of “of.” That’s the second “of” in that sentence.
William J. Brennan, Jr.: Oh, I see that. Right, thank you.
Gustavo A. Gelpi: And the other error is the omission of the page on page 9 to the citation of Fuentes versus Shevin which should be page 86.
Potter Stewart: What page?
Gustavo A. Gelpi: Page 86.
Potter Stewart: 86, thank you.
Gustavo A. Gelpi: The Puerto Rican statutes which the District Court declared unconstitutional facially allow the taking of an innocent man’s property thereby imposing a penalty upon one not significantly involved in a criminal enterprise. The statutes do not afford opportunity to contest the seizure and forfeiture before it actually takes place.
Warren E. Burger: Before a forfeiture takes place?
Gustavo A. Gelpi: Yes. Appellants have suggested that there is a difference in the statutes between the actual taking and the moment of forfeiture. The statutes do not make such a distinction. They merely provide for the forfeiture, although property which may be used or is used or has been used in connection with a criminal enterprise. From the moment that the, in this case, the Superintendent, makes the determination that the property is forfeitable, the only thing that can happen is for a filing of a challenge to that forfeiture after it has been seized and that challenge would not be of help unless the challenger happens to fall within one of the -- two of the exceptions which have been judicially permitted to that forfeiture.
Potter Stewart: But -- or is he upheld on a factual basis, wouldn’t it, if the challenger could show that marijuana was not in fact discovered on the vessel?
Gustavo A. Gelpi: I don’t even think that such a showing would exempt --
Potter Stewart: Well, what’s the point of the statute providing for any challenge then?
Gustavo A. Gelpi: That’s precisely it. I don’t see the point.
Potter Stewart: Well, there must be some point well I would suppose here wasn’t?
Gustavo A. Gelpi: It does exempt to -- it gives an opportunity, in the case of a common carrier, to come into court and show --
Potter Stewart: Well, that’s by judicial decision that a common carrier or somebody whose property was stolen and used for an illegal -- to transport contraband, is not covered by the statute. That’s by judicial decision, we’ve been told of your --
Gustavo A. Gelpi: Yes.
Potter Stewart: -- of the courts of Puerto Rico, but the statute doesn’t mention anything like that. The statute does, however, provide for a challenge to the confiscation and I suppose that that was to allow the challenger to show that marijuana, in fact, had not been discovered aboard the vessel or some such other ground for opposing the seizure and forfeiture. Now, you’re saying that there’s not even -- that’s not even permissible under Puerto Rican law?
Gustavo A. Gelpi: There has been no case regarding whether that showing could be made. The fact is that once the determination has been taken by the Superintendent of Police or even by a mere policeman, as it appears from the statute, that this vessel may be used to transport or to facilitate the transportation, concealment or possession of marijuana, then it is subject to forfeiture as well. There is no limitation, as I see it from the statute, which would limit the forfeiture to the case where marijuana is actually found on board.
Warren E. Burger: Well, to be more specific, suppose at the forfeiture hearing, the person came in and showed by the testimony of expert chemists that the substance found was ground soybeans and not marijuana. Do you -- are you suggesting that that would not be -- defeat the forfeiture?
Gustavo A. Gelpi: I don’t think it would defeat the forfeiture under these particular statutes.
William H. Rehnquist: Mr. Gelpi, at page 34 of the jurisdictional statement of your opponent, Section 1722 of the LPRA is set out under Section A there. It talks about how the hearing shall be conducted and says towards the end of Section A, all questions that may be arise, and I understand to be to be talking about this challenge, shall be decided and all other proceedings shall be conducted as in an ordinary civil action. And then, it talks about appeal to the certiorari to the Supreme Court of Puerto Rico on questions of law. That sounds to me as if it is contemplated that factual questions can be raised in this proceeding.
Gustavo A. Gelpi: Oh! They could be raised, but whether that would defeat forfeiture is -- has not yet been decided.
William H. Rehnquist: What’s the point of providing for a hearing and adjudication of facts if the adjudication doesn’t have some effect on the proceeding?
Gustavo A. Gelpi: That is one of the defects of the statute, I think, which --
Thurgood Marshall: But in this case you admitted that they were transporting marijuana illegally on this vessel?
Gustavo A. Gelpi: No, it hasn’t been admitted. The only admission or the only violation which appears on the record is possession of marijuana on board the vessel.
Thurgood Marshall: Illegal possession?
Gustavo A. Gelpi: Well, possession under --
Thurgood Marshall: Illegal or not?
Gustavo A. Gelpi: It is illegal, yes.
Thurgood Marshall: Its illegal possession and a violation of law?
Gustavo A. Gelpi: Yes.
Thurgood Marshall: And that’s admitted in this case?
Gustavo A. Gelpi: Yes, that is what it appears to have happened.
Thurgood Marshall: So I guess it is true that, in your case, there’s no use in having a hearing.
Gustavo A. Gelpi: Exactly.
Thurgood Marshall: Because he’s guilty.
Gustavo A. Gelpi: The lessee is guilty.
Thurgood Marshall: Right.
Gustavo A. Gelpi: Well, the decision relied on Fuentes and in Coin and Currency.
Thurgood Marshall: Marijuana?
Gustavo A. Gelpi: Appellant’s argument based upon the lease contract between the parties of possible compensation from collateral sources and upon the alleged failure to exhaust contractual remedies are irrelevant, in my opinion, since they were neither raised nor argued in the court below and have no basis on the record before this Court. Thus, the issue squarely posed is, what is the constitutional norm required for forfeiture under statute such as these in question. In the court below, appellants relied on the facial validity of the statutes and that being the sole issue before the court that was the only question resolved. Appellant’s contention that the norm applicable would be that of the probable cause, as required of the Fourth Amendment, would not save these statutes as the statutes do not impose that even that minimal requirement be observed. For example, at the moment of seizure which took place more than two months after the arrest of the lessee, no probable cause existed then for forfeiture. None has been shown to have existed on the record of this case. But, even if probable cause were accepted as the applicable standard, the Fourth require -- the Fourth Amendment requires that a warrant be issued. This record does not show --
Warren E. Burger: For the arrest or the seizure, the original seizure?
Gustavo A. Gelpi: The seizure, for the seizure. Now, the record here fails to show -- the only exception to the issuance of a warrant has been staged in many times by this Court and that’s where exigent circumstances exist which would justify any officer to proceed to arrest, to seize, and to search. The record here fails to show any such circumstances. The issuance of a warrant requires a prior determination by a judicial officer, not by the officer of the Executive Branch even though he may be a high officer, as has been pointed out by appellants. The statutes here in question, as a matter of fact, facially appear to permit that such a determination can even be made by a mere policeman. Now, the danger from such --
Byron R. White: Do you think there was an illegal arrest there?
Gustavo A. Gelpi: The record doesn’t show and I don’t know whether that --
Byron R. White: Well, you would have to claim that was illegal to make your present argument.
Gustavo A. Gelpi: Well, Your Honor, the thing is that the statute here -- the seizure in this case was for forfeiture.
Byron R. White: I understand, but it was after, as I understand it, marijuana was found on the vessel in possession of those in charge of the vessel.
Gustavo A. Gelpi: Yes, that’s what appears from the record.
Byron R. White: You think that was -- in those circumstances, do you think there would have to be a prior determination by a magistrate before an arrest could be made?
Gustavo A. Gelpi: That would depend upon what the circumstances were at the time of arrest.
Byron R. White: We’ve just given you the circumstances?
Gustavo A. Gelpi: If the policeman walks upon the boat and finds the person in possession using marijuana at that time, he is entitled to make an arrest.
Byron R. White: Yes.
Warren E. Burger: But you’re not challenging the arrest, that’s clear?
Gustavo A. Gelpi: No, I don’t even know how the arrest came about or how it was affected. Now, appellee respectfully submits that the appropriate norm is a hybrid consisting of a prior hearing as required by the Fifth Amendment with notice except in those situations where exigent circumstances are present. And even with such a prior hearing, the statutes here in question are still facially invalid as they have been construed by the Supreme Court of the Commonwealth of Puerto Rico, since innocence is not a defense to the taking and deprivation of one’s property as long as that property was lawfully in possession of the violator. Appellants have emphasized the need of forfeiture as an element of law enforcement. But, I ask how can the imposition of a post-factum penalty deter violations unless there has been a priori intent by the person that is being penalized? Certainly, by penalizing the innocent, the criminal is not going to be deterred. It can only force that innocent out of business. Now, where seizure is contemporaneous with an otherwise lawful arrest, the objectives of deterrence are obtained and it is constitutionally defensible so long as the defense of innocence is allowed. These statutes do not. On the other hand, where seizure and forfeiture is remote in time from the arrest, no objective other than the imposition of a penalty upon an innocent person is attained. If an appellant argues the purpose was to prevent reuse of the vessel in unlawful activities, the delay of two months, in seizing the vessel, is inexplicable. It merely highlights the true objectives of the statutes, which is the imposition of a penalty regardless of whether it falls upon the guilty or upon the innocent. The norm proposed is not impossible of legislative formulation, nor difficult in practical application, except where exigent circumstances are present. A hearing and when those circumstances are present, then the needs of law enforcement would be fulfilled by the immediate seizure. But in other circumstances, prior notice and hearing should be constitutionally required and innocence should be a defense.
William H. Rehnquist: If it is desired to seize contraband, wouldn’t there almost always be exigent circumstances as to the seizure as opposed to the forfeiture? I mean, you’re not going to get any contraband if you notify the people that in two days you’re coming aboard to seize it.
Gustavo A. Gelpi: No, but the seizure of contraband, Your Honor, is precisely one of the things that may be summarily seized because they are illegal per se. Now, there’s nothing illegal about a vessel or an automobile. And certainly, if the seizure has to be made, the seizure of the vessel has to be made in order to prevent the escape of the arrestee or to prevent some other illegal purpose or the destruction of the evidence, then that would be one of the exigent circumstances which would warrant the actual seizure.
William H. Rehnquist: But, in the Fifth, it’s permissible to have a statute that says a boat on which contraband is found shall itself be forfeited. Then, presumably one of the elements that the Government has got to show is that the contraband was found on the boat. Now, if they notify the lessee that, in 48 hours, they’re coming aboard to see if there’s any contraband on his boat, the result of that 48-hour search is pretty well foreordained, isn’t it?
Gustavo A. Gelpi: Well, Your Honor, if the contraband is there and has not yet been seized, that may very well be the case. But, when the contraband has already been seized and the lessee has been arrested, where is the exigent circumstances in requiring the seizure of the vessel when it takes place two months after the original arrest and seizure of the evidence.
Thurgood Marshall: Well, what if the boat is going to be used to transport the same thing within the next half hour, is that a good enough answer?
Warren E. Burger: Or as another alternative, that the boat won’t be there when they come?
Gustavo A. Gelpi: Well the boat, in the first place, Your Honor, does not belong to the lessee. He -- I don’t think he would have an interest in taking it away since it belongs to someone else.
Lewis F. Powell, Jr.: Now, may I call your attention to paragraph 4 (a) of the lease on page 43 of the jurisdictional statement? That is the paragraph that provides for insurance by the lessee to protect the lessor against damage, loss, or destruction of the equipment for any cause. Was there insurance which, in fact, protected the lessor for this loss?
Gustavo A. Gelpi: From the record of this case, it does not appear. Now, I’d be -- I have suggested in my brief that that precisely is one of the issues which should have been raised in the court below and adjudicated down below so that this Court could then have had a proper record.
Lewis F. Powell, Jr.: Well, why should that be a matter of concern since the lessor had the right under the lease to demand the insurance? If he failed to do so, would that not have been his responsibility?
Gustavo A. Gelpi: There is nothing in the record here to show that that there was -- that that insurance actually could exist. The fact or that the insurance itself provided for the payment in cases of forfeiture. Now --
Lewis F. Powell, Jr.: Does the lessor in this case declare the lease terminated and all of the rent due and payable, as is provided by the lease?
Gustavo A. Gelpi: It does not appear so from the record, but that was in fact done.
Lewis F. Powell, Jr.: But under the terms of the lease the lessor now has the legal right to make a full recovery from the lessee, there’s no doubt about that?
Gustavo A. Gelpi: Yes. It also has the right to seek repossession. As a matter of fact, as of the moment of the violation the contract was breached and the lessor became entitled to acquire possession of the vessel. Now, the extremely, I think, brought sweep of these particular statutes cannot be more emphatically exemplified than by considering the fact that the possible acquittal of the alleged violator will not result in the return of the property nor in the payment of compensation. This circumstance, I believe, is -- not only this circumstance, but this set of statutes, I believe, is way beyond what is constitutionally permissible and the only words to describe the statutes which I could find were those of Mr. Justice White in his dissent in Fuentes versus Shevin, that, to me, seem like a barbaric handover from bygone days. Unless the Court has any further questions --
Warren E. Burger: No, I think not. Thank you, Mr. Gelpi. Mr. Coleman, do you have anything further?
Lynn R. Coleman: One or two things, Your Honor. The perspective or one of the last things that counsel for appellees just stated that acquittal of one charged with a crime would have not all the effect on this forfeiture. I don’t think that’s reflected in this record at all and I’m not sure that’s a correct statement of the law. I just don’t think that that’s a -- that issue is presented with this case at all.
Warren E. Burger: But since the forfeiture is predicated on the illegal acts, it should reasonably follow that if no illegal act is found and determined, there couldn’t be any foundation for the forfeiture.
Lynn R. Coleman: That’d be my view of the law, Your Honor. And, I think that the courts here --
Potter Stewart: It’s not predicated on criminal conviction, is it?
Lynn R. Coleman: Well, it is predicated on their being a controlled substance, in effect, used in violation of the law on a particular vessel. Now it seems to me, if there’s a determination that the one that controls the substance or the one who owned this vessel or any of the things which would then themselves vitiate a conviction, now that would of necessity defeat the forfeiture.
William J. Brennan, Jr.: But it must require a conviction?
Lynn R. Coleman: No, it certainly doesn’t--
William J. Brennan, Jr.: All it requires is proof that the substance were there whether or not there is any prosecution, isn’t that it, under the statute?
Lynn R. Coleman: The statute reads that way, Your Honor.
William J. Brennan, Jr.: One way up, I mean, that’s where you would’ve taken it.
Lynn R. Coleman: I think that --
William H. Rehnquist: Might you not find a situation where there was controlled substance of a vessel, but no sufficient evidence to say that any one given individual was in possession of the controlled substance?
Lynn R. Coleman: I think that could be certainly the case, Your Honor. Now, I would only make one other point. Appellees have suggested that what we are contending is that the Fourth Amendment probable cause requirement applies to seizure and then they go from that to say that “Well, you should have a warrant.” Your Honor, that is a misstatement of our contention. We say that the statute here, the way it operates, has built into it protections which are very similar to a determination of probable cause. If probable cause is required, we think that the statute and the way it was complied with satisfies it, but we do not think that there’s any question of a warrant being acquired, something over and above what the statute requires. And this Court’s decision in Cooper versus California which was cited with approval in this past term’s decision in Cady versus Dombrowski, I think, makes that crystal clear. With respect to the argument that why can making the property of one who’s innocent of a crime be helpful in law enforcement, I think that it’s self-evident. This Court in the Goldsmith case which has not been overruled said that the theory of the law is you interpose the care of the person who entrusts his property in aid and law of law enforcement, particularly when you’re talking about people who are selling property or lending money. They have the ability to protect themselves against that risk and then if that risk is there, they also have the motive to try to see that their property is not used in violation of the law. That is a justification for this. Thank you, Your Honor.
Warren E. Burger: I suppose, Mr. Coleman, that it has happened that a vessel on -- with no one on board at all may have been found with machine guns, heroin, or other contraband seized and forfeited and there would be no verdict of guilt of any person unless --
Lynn R. Coleman: I think --
Warren E. Burger: -- unless they could show that the owner in some way was involved in the conspiracy?
Lynn R. Coleman: I think so, Your Honor. But, that is not the only justification for the statutes and the only justification for forfeiture, I think that forfeiture would be amply justified in the case of that kind because it’s evident that someone had seriously violated the law and that that vessel had been used in that violation. It wouldn’t offend due process to take the vessel.
Warren E. Burger: Then the vessel was the instrument of the crime?
Lynn R. Coleman: I think that --
Warren E. Burger: There was no proof of who navigated the vessel?
Lynn R. Coleman: Yes, I think it’s an instance where fiction may bear a close resemblance to reality, Your Honor. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Warren E. Burger: We'll hear arguments next in number 71-1017 and 71-1026, Gravel against the United States and United States against Gravel, consolidated.
Sam J. Ervin, Jr.: Mr. Chief Justice --
Warren E. Burger: Just let the crowd to clear a little bit. We have got all the power lawyers in Wahsington based Senator. Senator Ervin.
Sam J. Ervin, Jr.: Mr. Chief Justice and may it please the Court. The facts out of which this case arouse are extremely simple. Senator Gravel is a long time critique of American involvement in Southeast Asia. On June 29, 1971, he convened the meeting of the sub-committee of the Senate of which he is chairman. After convening the meeting, he made a speech in the meeting in which he quoted extracts from the so called Pentagon Papers. After so doing he inserted the Pentagon Papers in their entirety in the record of the committee's hearing. He had -- was assisted in preparing for this meeting and for these activities by his aide, Dr. Rodberg. Subsequent to the presentation of the Pentagon Papers to the committee, Senator Gravel, acting through Dr. Rodberg, undertook to find a publisher for all these papers to give then wider dissemination and --
Harry A. Blackmun: Could I ask you, tell me a little bit about Dr. Rodberg. Was he hired that very day by the Senator?
Sam J. Ervin, Jr.: Yes sir he was hired that very day by the Senator, but the lower courts have found that he was an aide to the Senator and that question is not in controversy.
Harry A. Blackmun: Was he on government payroll or not?
Sam J. Ervin, Jr.: I believe there is some evidence in the record that he was employed. His name was entered on the record of the department, but it was not entered on the records of the financial clerk. There is however an old controversy about his being an aide to the Senator -- to Senator Gravel.
Warren E. Burger: Was this circumstance arising simply out of the fact that it -- this was a very hasty development?
Sam J. Ervin, Jr.: Yes, it seems to been done rather on the spur of the moment. As a result of the fact that then some cont -- some recent Pentagon Papers have some controversy in other areas about publication -- about papers of the Pentagon Papers. Now in this effort to find a publisher, Dr. Rodberg consulted with the witness Webber, it was mentioned in the record and also upon -- on behalf of Senator Gravel an agreement with the Beacon Press of Boston to publish the Pentagon Papers which had been inserted in the committee records, in a book. The government issued what I call a John Doe grand jury investigation in the district of Massachusetts. For the avowed purpose, having the grand jury investigate whether someone had violated the criminal statutes which put -- make on certain divisions to the crime, or want to retain any government records with intent to convert them to his own views. Our statute which makes it a crime to gather and disseminate national defense information on under circumstances and the statute which makes it a crime to conceal or remove government records and also tell whether a conspiracy had been formed to violate any of these statutes. There was subpoena issued for Dr. Rodberg at the instance to the government. There was a subpoena issued for Webber. A witness who had the -- had some contacts with an unsuccessful effort of Dr. Rodberg to procure the publication for Senator Gravel and the book and then there were two subpoena duces tecums issued to the Beacon Press to require it to produce before the grand jury any documents which Senator Gravel or Rodberg had given them. Now, the controversies, three -- there is a controversy here between the government on the one hand and Senator Gravel on the other. Senator Sachs (ph), and I do not hold a brief of Senator Gravel. We appear hear solely in behalf of the United States Senate. United States Senate takes this position that a Speech or Debate Clause of Section 6 of Article I of the Constitution says in affect to the other branches of the government, the executive branch and the judicial branch, you must keep off this legislative rights. I use this expression because I was impressed by the greenest of the grass as I came over to the Court this afternoon. The Senate does not take the position that it -- holds no brief for Senator Gravel. It merely holds -- takes the position that every thing that Senator Gravel did, at least short of the publication, was acted within the general domain of the legislative branch of the government and that the Senator Gravel is not accountable to the executive branch and that he's not accountable to the legislate -- to the judicial branch of the government for any of his legislative activities.
William J. Brennan, Jr.: Senator you said short of publication, is that saying --
Sam J. Ervin, Jr.: I said – I'm going to come to that separately. I don't think -- I think I'll deal first with the action in the committee and then deal with that as a separate matter.
Warren E. Burger: While we have you stopped Senator, with the immunity that you have just suggested to be broad enough so that no inquiry could be made judicially or otherwise into whether meeting was a valid meeting under the Senate rules?
Sam J. Ervin, Jr.: The court implied to held that in the case of Tenney against Brandhove where the court quoted at length and with complete approval the decision of the Supreme Judicial Court of Massachusetts in the case of Coffin against Coffin which was handed down many, many -- right after 1800 and they held that it was immaterial. If the man was acting within what was traditionally the legislative activity, it made no difference whether these activities were regular or irregular under the rules of the legislative body of which he was a member.
Warren E. Burger: In other words, that would be the business only of the Senate?
Sam J. Ervin, Jr.: Oh, certainly, that is our position. In other words, that this is something that is beyond as far as anything that transpired within the scope of the Speech or Debate Clause of the Constitution. It's something of which the executive branch, or the legislative -- judicial branch having a constitutional power whatsoever --
William J. Brennan, Jr.: And that inquiry or discipline or both is something exclusively for the Senate?
Sam J. Ervin, Jr.: That's right. In other words, the Section 5 of Article I, the preceding Section to the Speech and Debate Clause expressly says that each House shall determine the rules of its proceedings, may punish members of disorderly behavior and with the concurrence of two-thirds expel a member. And our position is that whether even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that that is a matter for the judgment of the Senate and no other power in our government has right to make any official pronouncement on that subject.
William J. Brennan, Jr.: Senator the Congress, both Houses of the Congress enact legislation, which authorizes the judicial branch to make an inquiry, is that statute constitutional? Would that statute be constitutional?
Sam J. Ervin, Jr.: If we authorize an investigation?
William J. Brennan, Jr.: Yes.
Sam J. Ervin, Jr.: I doubt it very seriously. I doubt whether the Congress can confer upon the judicial branch of the government with example -- I don't think it fall upon executive branch the power to prosecute a Senator, a Representative or upon the judicial branches the power to the judge --
William J. Brennan, Jr.: Or an aide?
Sam J. Ervin, Jr.: In its function of the government. In other words I think it's totally, as the Germans would say it's about both so far as in a branch of the government in the House of which the party is a member.
Warren E. Burger: Senator I am not sure it's relevant here but you may shed some light on it for me. Suppose in -- a session of the Congress was held here, extraordinary kind of meeting, a libel was committed on an individual. Could that individual in a suit for libel or slander, should it be that broad, could he question the validity on --
Sam J. Ervin, Jr.: Not if it happens within the domain of the executive branch of the government. That's been settled, that's settled in --
Warren E. Burger: Well then that would be the question in the case whether it was within the legislative function?
Sam J. Ervin, Jr.: But the decisions are to the effect and I don't think there is any great controversy between (Inaudible) on this point. The decisions are to the effect that anything that happens within the area which is alloted to the legislative branch of the government and which is traditionally done in that branch is subject -- it could be subject to liability. Now there is a distinction made between the immunity of the legislator and the immunity of his aide. The legislator is absolutely immune even when he engages in a the non constitutional acts, such as for example, they have spoken for the non-constitutional resolution of bill, he is absolutely immune, he cannot be summoned to court. The aide however, can be asked for to talk – an action for tort if -- unless two things concur. The aide must be acting within the scope of his employment by the legislator and the activity of the aide must occur within the general domain of the legislative branches of the government. If those two things are concur, the immunity to the aide is exactly like the immunity of the legislature, and it is held by the court below, I think quite wiseman has held in other cases that that is so (Inaudible). The government takes a very peculiar position in this case, it takes a position at the Speech and the Debate Clause, protects a legislator only in three respects. First, it protects him against criminal prosecution for what transpires within the scope of his legislative action. Second, that it exempts him from the civil liability and third that it exempts him from being the person to be dragged before a Grand Jury by subpoena and in the person interrogated by the Grand Jury, that's the position of the Solicitor General and he takes a very strict construction of -- he should place that on the fact that the clause says for any speech or debate in either House, they, that is legislators shall not be questioned in any other place. He says that, the only people mentioned as the legislators. Now that reminds me the argument that was made in the Court in Venice when Shylock demanded his pound of flesh. He said that its nominated in the bond, I am to get my pound of flesh. Well my reply to the argument of Solicitor General is that same as posture made. It's also impliedly nominated in the bond that all you get as your pound of flesh, you don't get a drop of blood, and this -- this bond in this case could not possibly to be subjected to the interpretation that the government places upon it without taking the life of blood of the Constitution because this clause was imposed in -- it was placed in the Constitution for a two-fold purpose. The first purpose was wrath on that experience in the England and there in England, the Quito and the Stuart kings have the members of the parliament held in the court, prosecuted, convicted and sentenced to jail falsely, making speeches on the floor, making speeches in parliament which was displeasing to the crown and so in the Bill of Rights of 1688, the provision was incorporated that members of the parliament should not be called upon to answer in any court or in any other places except for parliament for their activities as members of the parliament. And so that was brought in down prosecution for that reason and as so well stated by Justice Harlan in the Johnson case for an additional reason. He quotes in his very fine opinion in that case, a statement of Madison and Federalist Papers on the separation of the powers of the government. And after pointing out how the powers of the government are separated by a written Constitution in this country, Madison says that the next important thing is to have some practical methods by which to enforce the doctrine of the separation of the powers and prevent one branch of the government from trespassing upon the domain of the other. And in the Johnson case, it is said that the Speech and Debate Clause was one of the practical obstacles created by the Constitution to forbid the trespass by the other branches of the government upon the domain reserved by the Constitution to the legislative branch. Now manifestly, if you take the interpretation this Court would place upon this false of the Constitution, the interpretation for which the government contends, it would make the clause virtually worthless because it would allow even aides of these Senator, or third parties to testify the Senator's conduct within the scope of his legislative activities. Now the purpose of this clause as the Court held in the Johnson case is to keep legislators from being a accountable to the other two branches of the government and to keep them from being intimated by the other two branches of the government. The Solicitor General suggests that or having the -- the Senators conduct testified to by his aides or by third persons has no more deterrent effect on his legislative action. Then having him the subject to the criticism of his constituents. Well I submit that that it's not a valid, that shows it's not in accord with the facts of legislative life. I have spent about six years serving in the legislature of North Carolina and altogether I have served almost 19 years in the Congress in one House or the other and I have to testify this Court that among the most timid creatures I have ever met are legislators and they can cope with an isolated criticism of their constituents who have right under the Constitution incidentally to criticize them and they can cope with the criticism of the press which has right criticize their conduct. But I don't know anything that would come nearer scare the poor Senator or poor Representative to the death than to have either the executive branch of the government with all the might, governmental might which the executive branch possesses, or the judicial branch of the government with all of the respect which the judicial branch enjoys as an impartial body, of holding a Senator or a Congressmen accountable not for the legislative acts that they have right to review and exercise a judicial power to measure their constitutionality but to have the power to pass officially in any way, all of their conduct as a legislator, that would absolutely destroy the independence of the legislative body. And that was precisely the reason I think the Court said in the Johnson case, that this was intended to keep legislators from being held accountable to the other branches of the government or intimidated by the other branches government. I respect to submit that the question is whether the Dr. Rodberg is exempt, is the answer to the decision of this Court in the Johnson case where a Representative was prosecuted for conflict of interest, the conspiracy. And this Court said the language of the speech or debate clause clearly proscribes at least some of the evidence taken during the trial exclude extensive questioning without concerning how much of the speech was written by Johnson himself, how much by his administrative system and how much by outsiders representing the loan company. The government will try to ask specifically about certain sentences in the speech. He has taken the stand there in his own behalf that the reasons for that inclusion and his personal knowledge of the facts and materials supporting those statements. In closing our argument the theory of the prosecution was very clearly depended upon the wording of the speech in addition to questioning the mammoth preparation and the precise ingredients of the speech, the government inquired into the motives for giving it. The constitutional infirmity, in fact, this prosecution is not merely a matter of introduction of inadmissible evidence. The attention given to the speech of substance and the motivation was not an incidental part of the government's case which might have then aborted by omitting certain lines of questioning or excluding certain evidence.
Warren E. Burger: You can finish Senator.
Sam J. Ervin, Jr.: Then the Court concludes, we see in our State from the conclusion, that an (Inaudible) Judicial inquiry made in the course of a prosecution by the executive branch under a general conspiracy statute, violates express language of the Constitution on the policies which under -- I believe my time has expired.
Warren E. Burger: Thank you.
Sam J. Ervin, Jr.: I am sorry, I didn't get time to allude to the question that --
Warren E. Burger: I think you have a question over here.
Harry A. Blackmun: Senator may I ask just for information purposes, is there any limit on the number of aides a Senator or Congressman may have as to number?
Sam J. Ervin, Jr.: I think there are two practical limits. One is his allowance to compensation of legislative aides and another is his office space he has got. I don't exhaust my allowance but my office space is so limited I couldn't find another chair for giving it another one to sit on [Attempt to Laughter].
Harry A. Blackmun: But, it is here an aide such as Dr. Rodberg is not on the payroll, the first of those provisions has no significance?
Sam J. Ervin, Jr.: No sir.
Harry A. Blackmun: What's to prevent the Senator from having 150 Dr. Rodbergs?
Sam J. Ervin, Jr.: Well I think it would be impractical. I think that sounds to have many probably ought be removed for mental incapacity. [Laughter] I think as long as the Senator is getting assistance from the man -- performance of any of his senatorial functions or what he conceives to be a senatorial functions at, there is no limit.
Warren E. Burger: Can you illustrate that a little bit Senator? Suppose he calls on Professor of Economics at some University, doesn't hire him, doesn't appoint him, just write some of letter and says, would you give me your views about this, would you regard that person whom he is consulting as with in the immunity of the Speech or Debate Clause?
Sam J. Ervin, Jr.: Well frankly, I would give it a liberal amount of interpretation do that. I think anyone who assists a Senator in the performance of his legislative functions is exempt --
Speaker: Or compensation?
Sam J. Ervin, Jr.: Or compensation.
Speaker: Or a Congressman?
Sam J. Ervin, Jr.: Or Congressman, yes.
William J. Brennan, Jr.: Senator could you say in just a sentence perhaps what is the Senate's position on the republication question?
Sam J. Ervin, Jr.: The Senators themselves probably if you wrapped up to both of senators, it would be divided on -- I myself take the position that that would be covered either by the Speech or Debate Clause or by the First Amendment. Mr. Justice Douglas wrote a marvelous opinion in the Rumley (ph) case and Richard Rumley (ph) was someone before the un-American activists, I hope his is not being charged off.
William J. Brennan, Jr.: No.[Laughter]
Sam J. Ervin, Jr.: He was someone for the un-American activists committed the House unless called upon to divulge to the committee, the names of all of the persons who had both of -- his books he published them above quantities. He refused to produce them and was prosecuted for contempt of the committee and this Court held that he was protected by the First Amendment and the majority of the Court held in the opinion by Justice Frankfurter that the prosecution was unsupportable because the committee was not authorized by resolution going into this activity to conduct this investigation. But Mr. Justice Douglas and while I think one of the finest opinions he or any other member of this Court has ever written, he said he meant the constitutional problem. Justice Frankfurter said if they place the interpretation only resolution that the committee did have the power to compel the publisher, to disclose the names of the purchasers of his books, that would raise the serious constitutional question. Mr. Justice Douglas wrote an opinion in which Justice Blackmun concurred, in which he says (Inaudible) than to the constitutional questions. Respondent represents a statement of the American Press some may like what he publishes, others may disapprove. These tracks maybe the essence of wisdom to come to others that point of view and philosophy would be on that. To someone else that words may be harsh and impulsive, to others they may carry the hope of the future. We have publisher who through books and pamphlets seeks to reach the minds and hearts of the American people. The aim of the historic struggle for free press was to establish and preserve the right of the English people to full information with respect to doings or misdoings of their government. Well, that is not cited in the brief, it occurred to me last might, but I think this on that point. I think that some that – that Woodrow Wilson said one of the most important functions of Congressman, his important function he has a duty to inform his colleagues, the duty to inform his constituents, the duty to inform the general public about he thinks the government is being run. They now use not only the with congressional record and the committee reports, but in many instances Congressmen use a radio and a television, they are right books on the subject and I think that this Speech and Debate Clause is broad enough to cover any activity where a Senator or Congressmen attempts to inform either his colleagues or his constituents or the general public and I think it's protected by the Speech and Debate Clause. But, I think if he is not protected by the Speech and Debate Clause, then he is protected by the First Amendment because everybody gets a right to comment on the government under the First Amendment. And I think that if you could summon even third parties and the Court held in this case you couldn't summon third parties to testify to the meeting of the committee, but I think if you summon third parties that if you do not transgress, regardless the third party should testify that action of a Senator or Congressman and inform his constituents, that is covered by the Speech and Debate Clause, but it is not covered in that by is right as a citizen under First Amendment because if you intimidate a publisher or a publisher acting for Senator, by asking him to the divulge names of the purchasers of this book just equals as intimidating having official inquiry made by the government as to the circumstances under which they agreed to publish the book.
Warren E. Burger: Thank you Senator Ervin. Senator Saxbe, you have 10 minutes, we'll charge the extra time Court [Attempt to Laughter] and add that to Solicitor General's time.
William B. Saxbe: Mr. Chief Justice, may I please the Court. I want to join with Senator Ervin in thanking this Court for allowing us to orally argue this case, representing the Senate as amicus. I think it is particularly important to note that this is the first time the Senate has, as a body appeared before this Court. The gravity of this case and the potential impact of your decision on the doctrine of separation and power that brings the importance of this case and the Senate to you today. The Senate brief is not an ordinary amicus brief I might add. It is a statement of the Senate understanding, the meaning of the Constitution. We respectfully hope that our statement will aid to Court in the determination of this case which carries this great weight in regard to the legislative branch and its ability to serve the people that it represents. Our brief is filed on the half of Congressional privilege. It is not a defense of Senate Gravel or his aide and specifically not a defense of their conduct which established the fact pattern of this litigation. Many Senators, including myself, feel that the junior Senator from Alaska deeply abused the rules of the Senate. We feel strongly that his actions, while possibly adhering to the letter of the rules certainly violated the spirit of it. Senator Gravel's actions were reprehensible. I am in agreement with every Senator who thinks that he did an outrageous thing, but I believe it is for the Senate to decide whether he be punished and to inquire as to the conduct would necessitate punishment. If the Senate (Inaudible) demurrer the executive still could not use the subpoena and contempt power of the Judiciary to punish him because of the Congressional privilege we believe that's provided by the Constitution. Any punishment or a sanction is for the Senate and the Senate alone to meet out. A Grand Jury inquiry is barred under Article 1, Section 6 of the United States Constitution commonly known as the Speech or Debate Clause. Its purpose and historical use is not to reward members of legislative branch with immunity but to allow them to perform their duties and obligations of elective officers. Each member of Congress must decide for himself which issues require ventilation and how can best inform is constituency. It's not for the executive to challenge, or for the judiciary to judge a member's choice of issues, to publicize or other methods of ventilation to his constituency regardless of whether they may be considered ill-advised. The Senate acts as a whole or in part may not prove the exercise of privilege by Senator Gravel in this case. And I am here to represent that part of the Senate which vehemently disagree with his actions but join him in the assertion of the congressional privilege. The executive or judiciary branch cannot dictate the bounds of congressional privilege if we are to retain meaningful separation of powers, whether its necessarily board in concept of congressional immunity. The Constitution provides the members of Congress, may not be questioned in any other place, or any speech or debate or any action surrounding a legislative and informing functions. The Constitution does not allow the executive to second guess a member of Congress as to what his legislative duties are even if the judiciary agrees by testing his congressional privilege by grand jury inquiry.
Byron R. White: Senator, if the government indicts someone for wiretapping and indicts two people for wiretapping, and one of them is given immunity and he testifies that he was hired for the wiretap by a Senator in order to aid the Senator in his legislative duties to get information to conduct a hearing, would you think his co-defendant may be convicted or --?
William B. Saxbe: If the Senate and he is referring to a Senator, he is employed by him?
Byron R. White: Yes.
William B. Saxbe: If the Senator said yes, this man --
Byron R. White: The Senator doesn't say anything, there are just two men who have been hired and one of them says we were hired by a Senator to tap a wire, not (Inaudible) of the statute?
William B. Saxbe: I don't think it can be extended in that manner in any way. It can only be extended by the Senator or by the body itself.
Byron R. White: Alright and if the, if the testimony is that they were hired by the aide to the Senator, could the aide be convicted for wiretapping --
William B. Saxbe: I don't --
Byron R. White: Or for the conspiracy to wiretapping?
William B. Saxbe: I don't think that you can extended beyond the first degree at that point. I don't think that it could be extended to a wiretapping. I have searched my mind on this, a very difficult position. Suppose its June of 1944 and a Senator discloses to the enemy the D-DAY landing dates in France.
Byron R. White: Well I take it that Senate's position is though is that the Senator could not convicted for a wiretapping?
William B. Saxbe: I think that, that with follow if it was in performance of what he felt to be his constitutional duty.
Byron R. White: Well, no body questions about what he desired to have information, that was very relevant to his legislative duties and he was quite willing to break -- to not comply with wiretap law in securing information?
William B. Saxbe: But, I think that the --
Byron R. White: Would you say that he was immune or not?
William B. Saxbe: I would say that he would be immune if he could successfully tired in to his legislative duties. Now, he can be arrested for running through the traffic light out here in front.
Byron R. White: I suppose, if they got to Senator in his aide and the third party in the act of breaking in a building somewhere, they could arrest all of them?
William B. Saxbe: Absolutely, just as running through this traffic light out here.
Byron R. White: Even though the information that he were going to get on to the file somewhere or was going to, it's going to be introduced in on committee hearing?
William B. Saxbe: That would be a difficult thing to determine, but the Senate and the Congress itself --
Byron R. White: Well, let's assume an aide and the Senator and a third party had thought seizing a -- caught in the act -- one of them caught in the act of breaking into the building, the only thing is the other one has already gone with the guts and that gets back to the Senator and he introduces it into a legislative hearing. So, there is no question that the material that was stolen is used in a legislative hearing, it is no question about it and it also relevant to the subject matter of the committee. May be aide be convicted or the third be convicted?
William B. Saxbe: I can foresee that there would be certain circumstances, primarily in criminal law where the Senate would have to deliver up one of there member and aides because he so stepped outside the scope of any reasonable Senate activity that he would have to be prosecuted.
William J. Brennan, Jr.: Well, Senator may that not be in this very case, an issue of source of the Pentagon papers?
William B. Saxbe: I don't think that they can get to the source of the Pentagon papers through Senator Gravel. Now this is the nub of --
William J. Brennan, Jr.: Well, how about the aide?
William B. Saxbe: I don't think that you can strip the aide of Senator Gravel's immunity in this particular instance. Now, as to the Senate's responsibility in following through on this, yes, I feel that there is a responsibility.
William J. Brennan, Jr.: But exclusively with the Senate?
William B. Saxbe: But exclusively with the Senate and with the Senator's aide in this particular instance. Now, I can foresee Criminal Acts, as Justice White has raised, where the Senate would have to deliver up one of their members to the regular procedures of the courts.
Warren E. Burger: But when you say, deliver up to, is open season, in fact they don't have to deliver him really -- you mean he is not covered by the immunity?
William B. Saxbe: He is not covered by the immunity and he might appeal by saying, this is something that I need in my committee. I'm breaking into this room, to get this and then of course, if the Senate rushed to his defense and said this is a very thing that we have a great need for and it's important, I can see a weakness in the case, but I don't think that particular thing would happen.
Warren E. Burger: What you are saying perhaps is, that house breaking is house breaking and members of Congress have no immunity to that?
William B. Saxbe: And the members of Congress do have the responsibility of living up to keeping their own House in order and I hope that they will do a proper job thereby.
Thurgood Marshall: Senator suppose somebody steals government records, breaks property in order to get it and bring it to a member of Congress and tells him what he has done, and the member of Congress puts him on his staff, is he outside?
William B. Saxbe: I think that the present case is, I can see the --
Thurgood Marshall: No, my question has no relation to present case?
William B. Saxbe: Well, I think in the particular instance, that he has to be employed at the time and I was going to say that in the present case, the question has arisen in our minds as to whether there was an attempt to close Dr. Rodberg with this immunity after the fact and I think that there is something that the Senate could well look into. But in this man through his stealing and takes him and then there is an attempt to cloth him, I think it would fall by it's own weight.
Thurgood Marshall: Senator my point was that this administrative aide, I don't want to rank him in anyway, without the consent of the Senate, Senator or Congressman, goes out, breaks out locks, steals property and brings it in. One, suppose the Senator said, “Look he shouldn't have done that” or suppose the Senator said, “fine,” either way, is that aide protected?
William B. Saxbe: He is not protected for the acts that were performed prior to being clothed by this and I would think that Senator would have a responsibility. If he knew that he violated the law, to immediately notify the proper authority.
William H. Rehnquist: Senator Saxbe at one point during your argument you adverted to a D-Day situation. Could you elaborate on that at all?
William B. Saxbe: I think that this is a worst type of situation that I could imagine, or a man would disclose information that would compromise the armed forces and they actually feature this character. I think even in that case, it would fall upon the Senate to punish and to move against this Senator who has violated his trust. I think that in the worst instance of this nature where he took his advantage to classified documents and disclose them, that he still would be subject to the punishment of the Senate of the United States or the House of Representatives as the case maybe.
William H. Rehnquist: And only to that?
William B. Saxbe: And only --
William O. Douglas: But that raises the question Senator whether everything that stand classified is out from it under the First Amendment and that's a very large question?
William B. Saxbe: Yes and one that has been carefully avoided I might add. [Laughter] The classified nature of the information is not the real issue of this case. I don't think.
Warren E. Burger: Thank you Senator Saxbe. Mr. Solicitor General, would you prefer not to divide, is counsel going to engage only in rebuttal.
Speaker: No Your Honor we have --
Warren E. Burger: Oh! Excuse me, Mr. Reinstein, you may proceed. You might want to plan your argument by having in mind that we will have about 7 minutes now and whatever the balance is in morning.
Robert J. Reinstein: Mr. Chief Justice and may I please the Court. As Senators Ervin and Saxbe have indicated, there are really two basic issues in this case. One issue is that scope of the Speech and Debate Clause, that is the kinds of activities for the member of Congress which are privileged under the Clause and the second issue was whether the grand jury can conduct an inquiry into these activities if they are privileged. I would like to spend the time remaining today, to talk about the first issue and in particular on the question of publication. First of all it is far too late today and indeed by about 300 years to argue that the free speech privilege of legislators encompasses only speech and debate in the literal sense. The privilege has never been construed that way in America or in England. On the contrary it is always been construed broadly, to cover all functions of legislators, which are necessary to fulfill goals of representative government and according to Kilbourn case codified that by saying, those customary actions of members of Congress which are relative to the legislative process. Obviously house breaking for example, isn't related to legislative process, it would not fulfill any goal of representative government, even under some kind of claim that the Senator needed the information. But, the standard that we were suggesting is the broad standard of the Clause, those activities necessary to fulfill goals of representative government, is we think the only kind of standard which meets the purposes of the Clause and the Senator Ervin said, so well, those purposes are enforced to preserve separation of powers and to enable a representative to discharge its obligations to the electorate without fear of either Executive or Judicial intrusions.
William J. Brennan, Jr.: Well I guess basically, it is because there is value to the people as people in the independence of legislators?
Robert J. Reinstein: That's right, Your Honor. The Speech or Debate privilege --
William J. Brennan, Jr.: You can phrase it in separation of the powers in other terms, but that's what's at the bottom, what it is?
Robert J. Reinstein: That's right Your Honor, it's to secure the rights of the people in representative government. It is not (Inaudible) of an office and has nothing to do with the status of the individual. It is to preserve the rights of the people.
Warren E. Burger: Another way to say that I suppose is that it's to preserve the integrity of an independent legislative body, isn't it?
Robert J. Reinstein: Yes Your Honor, both the independence and the integrity of an independent legislative body. Therefore, the Clause does cover broadly all of those necessary functions and we think it is also a little too late in the day to argue that the informing function of Congress does not fall within that category. In our system of government the because of the sovereignty of the people, because of the necessity of securing the rights of the people, Representatives have a duty, they have an obligation to inform their colleagues and their constituents and the public at large, about matters of public importance and specifically as Woodrow Wilson said in his classic study on Congress, specifically about executive conduct in both domestic and foreign policy. This obligation does not only derive from the fact that the people must be able to have this information in order to govern themselves intelligently, but it is also from a perception about the very operation of the Legislative process and that is the people must have this information in order to inform -- in turn inform their representatives of their well considered views on pending and potential legislations. What this is an interplay and I think Your Honors that practically every Congressman from the birth of the Republic has recognized this that there must be an interplay between a representative and the people and that this interplay is the bed rock, the heart of our system of a representative government.
Warren E. Burger: Would you think that's right enough so that the committee of the Congress for example, could subpoena all of the contingency military and defense plans from the department of defense where the joint chiefs of staff come over and testify about their contingency plans?
Robert J. Reinstein: The question there Your Honor in the securing information for the subpoena power of Congress, is whether or not there is an executive privilege implied in Article 1, to prohibit this power, to prohibit the scope of the subpoena. This is never really been decided by this Court. There is of course an article 1 enumerated executive privilege. It has been implied in the constitution by – at least as has been arguably implied because many Presidents have asserted the privilege and one would get into a conflict there between two constitutional privileges. One the privilege of Congress to obtain information and the second the privilege of the executive branch so withhold information from Congress, it's a difficult problem. We don't have any kind of conflict of that sort here. What we have here is a member of Congress, who has information critical of executive conduct in foreign policy making not available to the people of United States through the holding of the subcommittee and through the publication material. And this is exactly the kind of conduct that is fallen within the mainstream of the hardcore purpose of the Speech and Debate Clause. The privilege both in England and America arose in order to allow unrestrained criticism by members of Congress of the administration. We don't have here a civil case, where an individual claims that his constitutional rights are being violated, willfully by a member of Congress. Those cases have been before this Court. Normally you have a case here of bribed Congressmen, who argues a separation of power theory in some attenuated fashion. What we have here is a situation of United States Senator who is criticizing the executive about matters of overwhelming public importance, and if this kind of conduct is not protected by the Constitution then the promise of the Speech or Debate Clause which is as Mr. Justice Brennan and the Chief Justice have said, to preserve the independence and the integrity of the legislature, than that promise is illusionary. Now I don't want the Court to think that we are making a novel argument here. In fact the free speech privilege of both England and America we think that there is overwhelming evidence to support the proposition that these privileges were designed specifically to enable members of Congress to inform the electorate about executive behavior, and specifically through the publication of committee records. The English Bill of Rights resulted from a notorious prosecution of the Speaker of the House of Commons, who assert -- who had privately printed and distributed a committee record, accusing the King of malfeasance in office and that led to the exile of James II and the enactment of first free speech privilege and historians are unanimous and concluding that the very purpose of the codification was to bring publication within it.
Warren E. Burger: Well do you have to go beyond the Speech or Debate Clause for purposes of your case?
Robert J. Reinstein: No Your Honor we do not think so. The Court of Appeals felt that there might be a common law privilege akin to the executive privilege, but we think that the Speech or Debate Clause itself is adequate and that no additional privilege need to be implied or created out the common law. In our own country Thomas Jefferson and James Madison both articulated the view very eloquently that the free speech privilege covered communications from a member of Congress to its constituents in the form of newsletters or anything else. There was a Grand Jury investigation during a reign of the (Inaudible) laws fairly similar to this one, the claim of the executive laws that members of Congress were giving aid and comfort to enemies of the United States and Jefferson condemned that investigation as a blatant violation of privilege.
Warren E. Burger: We will resume there in the morning Mr. Reinstein.