Gravel v. United States

408 U.S. 606 (1972)

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Nature of the Case

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Facts

An investigation by a federal grand jury into possible criminal conduct was launched regarding the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy (Pentagon Papers). The Pentagon Papers bore a Defense security classification of Top Secret-Sensitive. Leonard S. Rodberg, an assistant to D, and Howard Webber, Director of M. I. T. Press were subpoenaed. D as intervenor filed motions to quash the subpoenas and to require P to specify the particular questions to be addressed to Rodberg. D claimed a privilege under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1. Prior to this on June 29, 1971, D, as Chairman of the Subcommittee on Buildings and Grounds of the Senate Public Works Committee, convened a meeting of the subcommittee and there read extensively from a copy of the Pentagon Papers. He then placed the entire 47 volumes of the study in the public record. Rodberg had been added to the Senator's staff earlier in the day and assisted Gravel in preparing for and conducting the hearing. Some weeks later there were press reports that D had arranged for the papers to be published by Beacon Press and that members of D's staff had talked with Webber as editor of M. I. T. Press. The District Court overruled D's motions but entered an order proscribing certain categories of questions. The District Court ruled that the clause was held to shield from inquiry anything the Senator did at the subcommittee meeting and 'certain acts done in preparation therefor. It held that D's privilege also prohibited 'inquiry into things done by Dr. Rodberg as the D's agent or assistant which would have been legislative acts, and therefore privileged if performed by the Senator personally.' The court held that the private publication of the documents was not privileged by the Speech or Debate Clause. The Court of Appeals affirmed and modified the protective order to reflect its own views of the scope of the congressional privilege. It ruled that D and aide were one for the purposes of the Speech or Debate Clause and that the Clause foreclosed inquiry of both D and aide with respect to legislative acts. The privilege also barred direct inquiry of D or his aide, but not of third parties, as to the sources of D's information used in performing legislative duties. As for the publication by Beacon Press neither Senator nor aide could be questioned about it because of a common-law privilege akin to the judicially created immunity of executive officers from liability for libel contained in a news release issued in the course of their normal duties. This privilege would not protect third parties from similar inquiries before the grand jury. P petitioned for certiorari challenging the ruling that aides and other persons may not be questioned with respect to legislative acts and that an aide to a Member of Congress has a common-law privilege not to testify before a grand jury with respect to private publication of materials introduced into a subcommittee record. D petitioned for certiorari seeking reversal of the holding that private publication was unprotected by the Speech or Debate Clause and asserting that the protective order of the Court of Appeals too narrowly protected against inquiries that a grand jury could direct to third parties.