Gravel v. United States, 408 U.S. 606; 92 S. Ct. 2614; 33 L. Ed. 2d 583 (1972)

Facts—As chair of the Subcommittee on Building and Grounds of the Senate Public Works Committee, Senator Mike Gravel read portions of the classified Pentagon Papers at a hearing and placed the entire committee report into the public record. He and his assistant, Leonard S. Rodberg, later arranged with Beacon Press to publish the Pentagon Papers. They were subsequently subpoenaed to testify before a grand jury investigating the publication of such top-secret materials. The District Court held that the speech and debate clause protected the men from testifying before a jury but not the private publication of the documents. The First Circuit Court of Appeals did not think the senator or his aide were protected by the speech and debate clause for activities in connection with the private publication but found 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.”

Questions—(a) Does protection of members of Congress under the speech and debate clause extend to their aides? (b) Does the speech and debate clause protect members of Congress and their aides for publication of top-secret documents previously read into the congressional record?

Decisions—(a) Yes; (b) No.

Reasons—J. White (5–4). The protections of the speech and debate clause are broad and extend to aides who act as the “alter egos” of members of Congress and without whom they would find it difficult to function. The Court has long rejected “a literalistic approach in applying the privilege.” This clause, however, does not immunize a member of Congress or his aides against grand jury inquiry into their arrangements to publish a top- secret document with a commercial press: “private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence.” The Court thus rejected the appellate court’s “judicially fashioned privilege so far as to immunize criminal conduct proscribed by an Act of Congress or to frustrate the grand jury’s inquiry into whether publication of these classified documents violated a federal criminal statute.” The immunity of the senator and his aide extend only to legislative acts.

J. Stewart argued in dissent that if members of Congress cannot guarantee confidentiality to their sources, they may dry up, and he denied that the interests of the executive overrode those of the legislature in this instance.

J. Douglas, dissenting, considered publication of the Pentagon Papers to be simply another means by which a member of Congress could inform the pub- lic about important matters of public policy. The First Amendment protected against inquiry into this role.

J. Brennan, dissenting, thought the Court was giving too narrow a reading to the speech and debate clause that did not give adequate attention to the “informing function” that members of Congress perform. He further argued that statements made by Thomas Jefferson and other Founding Fathers buttressed his views. Immunity from grand jury requirement was “essential to the performance of the informing function.”