Respondent, a former Congressman, was convicted on several
counts of violating the conflict of interest statute (18 U.S.C. §
281) and on one count of conspiring to defraud the United States
(18 U.S.C. § 371). The conspiracy charge involved an alleged
agreement whereby respondent and another Congressman would attempt
to influence the Justice Department to dismiss pending savings and
loan company mail fraud indictments. As part of the conspiracy,
respondent allegedly delivered for pay a speech in Congress
favorable to loan companies. The Government contended and adduced
proof to show that the speech was delivered to serve private
interests; that respondent was not acting in good faith, and that
he did not prepare or deliver the speech as a Congressman would
ordinarily do. The Court of Appeals set aside the conviction on the
conspiracy count as being barred by Art. I, § 6, of the
Constitution, providing that "for any Speech or Debate in either
House," Senators and Representatives "shall not be questioned in
any other Place," and ordered retrial on the substantive
1. The Speech or Debate Clause precludes judicial inquiry into
the motivation for a Congressman's speech, and prevents such a
speech from being made the basis of a criminal charge against a
Congressman for conspiracy to defraud the Government by impeding
the due discharge of its functions. Pp. 383 U. S.
(a) The Speech or Debate Clause, which emerged from the long
struggle for parliamentary supremacy, embodies a privilege designed
to protect members of the legislature against prosecution by a
possibly unfriendly executive and conviction by a possibly hostile
judiciary. Pp. 383 U. S.
(b) The privilege, which will be broadly construed to effectuate
its purposes, Kilbourn v. Thompson, 103 U.
; Tenney v. Brandhove, 341 U.
, was created not primarily to avoid private suits
as in those cases, but to prevent legislative intimidation by and
accountability to the other branches of government. Pp.
383 U. S.
Page 383 U. S. 170
(c) The Speech or Debate Clause forecloses inquiry not only into
the "content" of a congressional speech, but into circumstances
involving the motives for making it. Pp. 383 U. S.
(d) Prosecution under a general criminal statute involving
inquiry into the motives for and circumstances surrounding a
congressional speech is barred even though the gravamen of the
offense is the alleged conspiracy, rather than the speech itself.
Pp. 383 U. S.
2. The Government is not precluded from retrying the conspiracy
count as purged of all the elements offensive to the Speech or
Debate Clause. P. 383 U. S.
3. This Court does not review the Court of Appeals'
determination that the substantive counts be retried because of the
prejudicial effect thereon resulting from the unconstitutional
aspects of the conspiracy count, since the Government does not
dispute that determination in this proceeding. Pp. 383 U. S.
337 F.2d 180, affirmed and remanded.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Respondent Johnson, a former United States Congressman, was
indicted and convicted on seven counts of violating the federal
conflict of interest statute, 18 U.S.C. § 281 (1964 ed.), [Footnote 1
] and on one count of
Page 383 U. S. 171
defraud the United States, 18 U.S.C. § 371 (1964 ed.). [Footnote 2
] The Court of Appeals for
the Fourth Circuit set aside the conviction on the conspiracy
count, 337 F.2d 180, holding that the Government's allegation that
Johnson had conspired to make a speech for compensation on the
floor of the House of Representatives was barred by Art. I, § 6, of
the Federal Constitution, which provides that, "for any Speech or
Debate in either House, they [Senators and Representatives] shall
not be questioned in any other Place." The Court of Appeals ordered
a new trial on the other counts, having found that the evidence
adduced under the unconstitutional aspects of the conspiracy count
had infected the entire prosecution.
The conspiracy of which Johnson and his three codefendants were
found guilty consisted, in broad outline, of an agreement among
Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin
and William L. Robinson, who were connected with a Maryland savings
and loan institution, whereby the two Congressmen would exert
influence on the Department of Justice to obtain the dismissal of
pending indictments of the loan company and its officers on mail
fraud charges. It was further claimed that, as a part of this
general scheme, Johnson read a speech favorable to independent
Page 383 U. S. 172
and loan associations in the House, and that the company
distributed copies to allay apprehensions of potential depositors.
The two Congressmen approached the Attorney General and the
Assistant Attorney General in charge of the Criminal Division and
urged them "to review" the indictment. For these services, Johnson
received substantial sums in the form of a "campaign contribution"
and "legal fees." The Government contended, and presumably the jury
found, that these payments were never disclosed to the Department
of Justice, and that the payments were not bona fide
campaign contributions or legal fees, but were made simply to "buy"
The bulk of the evidence submitted as to Johnson dealt with his
financial transactions with the other conspirators, and with his
activities in the Department of Justice. As to these aspects of the
substantive counts and the conspiracy count, no substantial
question is before us. 18 U.S.C. § 371 has long been held to
encompass not only conspiracies that might involve loss of
government funds, but also "any conspiracy for the purpose of
impairing, obstructing or defeating the lawful function of any
department of Government." Haas v. Henkel, 216 U.
, 216 U. S. 479
No argument is made, nor do we think that it could be successfully
contended, that the Speech or Debate Clause reaches conduct, such
as was involved in the attempt to influence the Department of
Justice, that is in no wise related to the due functioning of the
legislative process. It is the application of this broad conspiracy
statute to an improperly motivated speech that raises the
constitutional problem with which we deal. [Footnote 3
Page 383 U. S. 173
The language of the Speech or Debate Clause clearly proscribes
at least some of the evidence taken during trial. Extensive
questioning went on concerning how much of the speech was written
by Johnson himself, how much by his administrative assistant, and
how much by outsiders representing the loan company. [Footnote 4
] The government attorney asked
Johnson specifically about certain
Page 383 U. S. 174
sentences in the speech, the reasons for their inclusion and his
personal knowledge of the factual material supporting those
statements. [Footnote 5
closing argument, the
Page 383 U. S. 175
theory of the prosecution was very clearly dependent upon the
wording of the speech. [Footnote
] In addition to questioning the manner of preparation and the
Page 383 U. S. 176
of the speech, the Government inquired into the motives for
giving it. [Footnote 7
The constitutional infirmity infecting this prosecution is not
merely a matter of the introduction of inadmissible evidence. The
attention given to the speech's substance and motivation was not an
incidental part of the Government's case, which might have been
Page 383 U. S. 177
omitting certain lines of questioning or excluding certain
evidence. The conspiracy theory depended upon a showing that the
speech was made solely or primarily to serve private interests, and
that Johnson, in making it, was not acting in good faith, that is,
that he did not prepare or deliver the speech in the way an
ordinary Congressman prepares or delivers an ordinary speech.
Johnson's defense quite naturally was that his remarks were no
different from the usual congressional speech, and, to rebut the
prosecution's case, he introduced speeches of several other
Congressmen speaking to the same general subject, argued that his
talk was occasioned by an unfair attack upon savings and loan
associations in a Washington, D.C., newspaper, and asserted that
the subject matter of the speech dealt with a topic of concern to
his State and to his constituents. We see no escape from the
conclusion that such an intensive judicial inquiry, made in the
course of a prosecution by the Executive Branch under a general
conspiracy statute, violates the express language of the
Constitution and the policies which underlie it.
The Speech or Debate Clause of the Constitution was approved at
the Constitutional Convention without discussion and without
V Elliot's Debates 406 (1836 ed.); II
Records of the Federal Convention 246 (Farrand ed.1911). The
present version of the clause was formulated by the Convention's
Committee on Style, but the original vote of approval was of a
slightly different formulation which repeated almost verbatim the
language of Article V of the Articles of Confederation: "Freedom of
speech and debate in Congress shall not be impeached or questioned
in any court, or place out of Congress. . . ." The language of that
Article, of which the present clause is only a slight modification,
is, in turn, almost identical to the English Bill of Rights of
Page 383 U. S. 178
"That the Freedom of Speech, and Debates or Proceedings in
Parliament ought not to be impeached or questioned in any Court or
Place out of Parliament."
1 W. & M., Sess. 2, c. 2.
This formulation of 1689 was the culmination of a long struggle
for parliamentary supremacy. Behind these simple phrases lies a
history of conflict between the Commons and the Tudor and Stuart
monarchs during which successive monarchs utilized the criminal and
civil law to suppress and intimidate critical legislators.
] Since the Glorious
Revolution in Britain, and throughout United States history, the
privilege has been recognized as an important protection of the
independence and integrity of the legislature. See, e.g.,
Story, Commentaries on the Constitution § 866; II The Works of
James Wilson 37-38 (Andrews ed. 1896). In the American governmental
structure, the clause serves the additional function of reinforcing
the separation of powers so deliberately established by the
Founders. As Madison noted in Federalist No. 48:
"It is agreed on all sides that the powers properly belonging to
one of the departments ought not to be directly and compleatly
administered by either of the other departments. It is equally
evident that neither of them ought to possess, directly or
indirectly, an overruling influence over the others in the
administration of their respective powers. It will not be denied
that power is of an encroaching nature, and that it ought to be
effectually restrained from passing the limits assigned to it.
After discriminating therefore in theory the several classes of
power as they may in their nature be legislative,
Page 383 U. S. 179
executive, or judiciary; the next and most difficult task is to
provide some practical security for each against the invasion of
the others. What this security ought to be is the great problem to
(Cooke ed.) The legislative privilege, protecting against
possible prosecution by an unfriendly executive and conviction by a
hostile judiciary, is one manifestation of the "practical security"
for ensuring the independence of the legislature.
In part because the tradition of legislative privilege is so
well established in our polity, there is very little judicial
illumination of this clause. Clearly no precedent controls the
decision in the case before us. This Court first dealt with the
clause in Kilbourn v. Thompson, 103 U.
, a suit for false imprisonment alleging that the
Speaker and several members of the House of Representatives ordered
the petitioner to be arrested for contempt of Congress. The Court
held first that Congress did not have power to order the arrest,
and, second, that, were it not for the privilege, the defendants
would be liable. The difficult question was whether the
participation of the defendants in passing the resolution ordering
the arrest was "speech or debate." The Court held that the
privilege should be read broadly, to include not only "words spoken
in debate," but anything "generally done in a session of the House
by one of its members in relation to the business before it." 103
U.S. at 103 U. S.
In Tenney v. Brandhove, 341 U.
, at issue was whether legislative privilege
protected a member of the California Legislature against a suit
brought under the Civil Rights statute, 8 U.S.C. §§ 43, 47(3) (1946
ed.), alleging that the legislator had used his official forum
"to intimidate and silence plaintiff and deter and prevent him
from effectively exercising his constitutional
Page 383 U. S. 180
rights of free speech and to petition the Legislature for
redress of grievances. . . ."
341 U.S. at 341 U. S. 371
The Court held a dismissal of the suit proper; it viewed the state
legislative privilege as being on a parity with the similar federal
privilege, and concluded that
"The claim of an unworthy purpose does not destroy the
privilege. . . . The holding of this Court in Fletcher v.
6 Cranch 87, 10 U. S.
, that it was not consonant with our scheme of
government for a court to inquire into the motives of legislators,
has remained unquestioned."
341 U.S. at 341 U. S.
indicate that the
legislative privilege will be read broadly to effectuate its
purposes; neither case deals, however, with a criminal prosecution
based upon an allegation that a member of Congress abused his
position by conspiring to give a particular speech in return for
remuneration from private interests. However reprehensible such
conduct may be, we believe the Speech or Debate Clause extends at
least so far as to prevent it from being made the basis of a
criminal charge against a member of Congress of conspiracy to
defraud the United States by impeding the due discharge of
government functions. The essence of such a charge in this context
is that the Congressman's conduct was improperly motivated, and, as
will appear, that is precisely what the Speech or Debate Clause
generally forecloses from executive and judicial inquiry.
Even though no English or American case casts bright light on
the one before us, [Footnote 9
it is apparent from the history
Page 383 U. S. 181
of the clause that the privilege was not born primarily of a
desire to avoid private suits such as those in Kilbourn
but rather to prevent intimidation by the
executive and accountability before a possibly hostile judiciary.
In the notorious proceedings of King Charles I against Eliot,
Hollis, and Valentine, 3 How.St.Tr. 294 (1629), the Crown was able
to imprison members of Commons on charges of seditious libel and
conspiracy to detain the Speaker in the chair to prevent
adjournment. [Footnote 10
Even after the Restoration, as Holdsworth noted,
"[t]he law of seditious libel was interpreted with the utmost
harshness against those whose political or religious tenets were
distasteful to the government."
VI Holdsworth, A History of English Law 214 (1927). It was not
only fear of the executive that caused concern in Parliament, but
of the judiciary as well, for the judges were often lackeys of the
Stuart monarchs, [Footnote
] levying punishment more "to the wishes of the crown than to
Page 383 U. S. 182
gravity of the offence." Id.
at 214-215. There is
little doubt that the instigation of criminal charges against
critical or disfavored legislators by the executive in a judicial
forum was the chief fear prompting the long struggle for
parliamentary privilege in England and, in the context of the
American system of separation of powers, is the predominate thrust
of the Speech or Debate Clause. In scrutinizing this criminal
prosecution, then, we look particularly to the prophylactic
purposes of the clause. [Footnote 12
The Government argues that the clause was meant to prevent only
prosecutions based upon the "content" of speech, such as libel
actions, but not those founded on "the antecedent unlawful conduct
of accepting or agreeing to accept a bribe." Brief of the United
States, at 11. Although historically seditious libel was the most
frequent instrument for intimidating legislators, this has never
been the sole form of legal proceedings so employed, [Footnote 13
] and the language of the
Constitution is framed
Page 383 U. S. 183
in the broadest terms. The broader thrust of the privilege is
indicated by a nineteenth century British case, Ex parte
L.R. 4 Q.B. 573 (1869), which dealt specifically with
an alleged criminal conspiracy. There, a private citizen moved that
a magistrate be required to prosecute several members of the House
of Lords for conspiring wrongfully to prevent his petition from
being heard on the floor. The court denied the motion, stating that
statements made in the House
"could not be made the foundation of civil or criminal
proceedings. . . . And a conspiracy to make such statements would
not make the person guilty of it amenable to the criminal law."
at 576. (Cockburn, C.J.) Mr. Justice Lush
"I am clearly of opinion that we ought not to allow it to be
doubted for a moment that the motives or intentions of members of
either House cannot be inquired into by criminal proceedings with
respect to anything they may do or say in the House."
Page 383 U. S. 184
In the same vein, the Government contends that the Speech or
Debate Clause was not violated because the gravamen of the count
was the alleged conspiracy, not the speech, and because the
defendant, not the prosecution, introduced the speech itself.
] Whatever room
the Constitution may allow for such factors in the context of a
different kind of prosecution, we conclude that they cannot serve
to save the Government's case under this conspiracy count. It was
undisputed that Johnson delivered the speech; it was likewise
undisputed that Johnson received the funds; controversy centered
upon questions of who first decided that a speech was desirable,
who prepared it, and what Johnson's motives were for making it. The
indictment itself focused with particularity upon motives
underlying the making of the speech and upon its contents:
"(15) It was a part of said conspiracy that the said THOMAS F.
JOHNSON should . . . render services, for compensation, . . .
to-wit, the making of a speech, defending the operations of
Maryland's 'independent' savings and loan associations, the
financial stability and solvency thereof, and the reliability and
integrity of the 'commercial insurance' on investments made by said
'independent' savings and loan associations, on the floor of the
House of Representatives."
We hold that a prosecution under a general criminal statute
dependent on such inquiries necessarily contravenes
Page 383 U. S. 185
the Speech or Debate Clause. We emphasize that our holding is
limited to prosecutions involving circumstances such as those
presented in the case before us. Our decision does not touch a
prosecution which, though as here founded on a criminal statute of
general application, does not draw in question the legislative acts
of the defendant member of Congress or his motives for performing
them. And, without intimating any view thereon, we expressly leave
open for consideration when the case arises a prosecution which,
though possibly entailing inquiry into legislative acts or
motivations, is founded upon a narrowly drawn statute passed by
Congress in the exercise of its legislative power to regulate the
conduct of its members. [Footnote 15
The Court of Appeals' opinion can be read as dismissing the
conspiracy count in its entirety. The making of the speech,
however, was only a part of the conspiracy charge. With all
references to this aspect of the conspiracy eliminated, we think
the Government should not be precluded from a new trial on this
count, thus wholly purged of elements offensive to the Speech or
The Court of Appeals held that Johnson was entitled to a new
trial on the conflict of interest counts because the admission of
evidence concerning the speech aspect of the conspiracy count was
prejudicial on these other counts as well. The Government reserved
the right to contest the order of a new trial, but, except for a
footnote ill its reply brief, it did not so argue in this Court; on
the contrary, it stated in oral argument that it stood solely on
its position with reference to the conspiracy
Page 383 U. S. 186
count. [Footnote 16
these circumstances, we find no occasion to review the Court of
Appeals' assessment of the record in this respect.
For the foregoing reasons, we affirm the judgment of the Court
of Appeals and remand the case to the District Court for further
proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE BLACK took no part in the decision of this case.
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
"Whoever, being a Member of or Delegate to Congress, . . .
directly or indirectly receives or agrees to receive, any
compensation for any services rendered or to be rendered, either by
himself or another, in relation to any proceeding, contract, claim,
controversy, charge, accusation, arrest, or other matter in which
the United States is a party or directly or indirectly interested,
before any department, agency, court martial, officer, or any
civil, military, or naval commission, shall be fined not more than
$10,000 or imprisoned not more than two years, or both, and shall
be incapable of holding any office of honor, trust, or profit under
the United States."
"If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of
such persons do any act to effect the object of the conspiracy,
each shall be fined not more than $10,000 or imprisoned not more
than five years, or both."
Only the question of the applicability of the Speech or Debate
Clause to the prosecution of Johnson is before us. The Court of
Appeals affirmed the convictions of codefendants Edlin and
Robinson, whose appeals were consolidated with that of Johnson and,
except for a brief as amicus curiae
submitted by Edlin,
questions raised in those cases have not been presented to us. The
defendant Boykin took no appeal from his conviction.
See direct examination by the prosecution of Martin Heflin, App.
182-191, esp. 189-190:
"Q. What, if anything, did Congressman Johnson do with the
material which Mr. Robinson brought in and gave to him? A. As I
recall, Mr. Johnson said that his administrative assistant . . .
would go over the material, too, and, if I am not mistaken, Mr.
Johnson called him in, and Buarque took the material, and I left
the office with Mr. Buarque to discuss it some more."
"* * * *"
"Q. After that meeting, did you at any time thereafter have any
contact either with Congressman Johnson or his office with regard
to the speech? A. I telephoned a time or two there, and I think I
was called by Mr. Buarque and asked him about certain figures that
the Institute -- background material that might be supplied, and I
did supply additional material, and I believe Mr. Buarque sent me a
draft, himself, with certain places, blank places for figures to be
filled in. We had a discussion about some of the technical phases
] and information, statistical information and so
"Q. You supplied some of the facts and figures for the draft
that Mr. Buarque sent you? A. Yes."
"Q. What did you do with that draft once you had looked it over?
A. Returned it."
See also cross-examination of Manual Buarque, App. 488-494;
cross-examination of codefendant Robinson, App. 772-775;
cross-examination of defendant Johnson, Transcript 79-93.
cross-examination of Johnson, Transcript 886:
"Q. And did you not tell Mr. Heflin, when he came to see you in
your office after that luncheon, that he should work with Mr.
Buarque on the preparation of the speech which was ultimately given
on June 30? A. My statement is the same as it has always been --
that Mr. Heflin came to my office, representing himself as a public
relations man, for a certain institute of Independent Savings and
Loan Associations. He had the article of one of the local
newspapers. A very unfair attack which he claimed had been made on
savings and loans. He talked with me a very short time. I told him
that Mr. Buarque, my administrative assistant, did all of my
writing, all of the conversations, and if there were any answers to
be made -- he went out with me to the next room, met Mr. Buarque,
and I left the two together."
"* * * *"
"Q. You told him, did you not, that he should work with Mr.
Buarque on the matter, since Mr. Buarque prepared your speeches? A.
I told him at the time to discuss it with Mr. Buarque, and any
arrangements Mr. Buarque wanted to make, why, he, of course, would
be cooperative with him."
"* * * *"
"Q. Now, you say that, at that time -- I assume you meant at the
time of the speech -- that one savings association meant nothing
more to you than another. Is that what you referred to? A. Not only
then, but following the speech, too."
"Q. I believe you testified on direct examination that you did
not know the name of First Continental Savings and Loan or First
Colony Savings and Loan at the time this speech was delivered on
June 30, is that your testimony? A. I think my testimony is that
one name did not mean more than another."
"* * * *"
"Q. Now, your speech was finally delivered or submitted to the
clerk, and it was printed in the Congressional Record, and it
stresses the value of commercial mortgage guaranty insurance, does
it not? A. I think it has a reference to it, yes."
"Q. Isn't it a fact that, at the time of the speech, First
Continental and First Colony were the only independent savings and
loan associations in the State of Maryland which carried commercial
mortgage guaranty insurance? A. I have no knowledge of that and did
not know at the time."
"Q. You have no knowledge of that? A. None whatever."
"Q. As a matter of fact, that language in your speech,
Congressman, was a part of the language which Mr. Edlin emphasized
in his reprint, was it not? A. May I say that I did not see any of
the so-called 'reprints.'"
"Q. Congressman, do you mean to tell the jury that Mr. Buarque
put that language in the speech about three indicted institutions
and none convicted, and you did not inquire as to which particular
institutions they were? A. He did not tell me which they were, the
"Q. Well, let me ask you this: how could you, if you did not
know which institutions were under indictment, how could you make
this statement in your speech: "
"'I personally do not know any of these institutions nor any of
the circumstances leading to their respective indictments. I hold
no brief for any of them, one way or another.'"
"That is the language of your speech, is it not? A. Yes, I said
that is the prepared speech which had been testified that Mr.
Buarque, with some help from Heflin, prepared."
Oral Argument on behalf of the Government,
Transcript 232-248, esp. 244-245:
"I submit to you, members of the jury, there is no other logical
explanation you can make but that that speech was made solely for
the purposes of Mr. Kenneth Edlin. It was a day's work for a day's
pay for the man to whom he was selling his Congressional Office and
his Congressional influence."
"Congressman Johnson has claimed on the stand in this case that
he did not then know that the First Colony Savings and Loan
Association was then under indictment."
"Now, you will recall the language in the speech itself that,
out of 400 independent savings and loan associations in Maryland,
exactly three of them have been indicted, and none convicted."
"[']Personally, I do not know any of these indicted
institutions, nor any of the circumstances leading to their
respective indictments. I hold no brief for any of them one way or
"Congressman Johnson claimed under oath, Members of the Jury,
that he did not even bother to check the facts to ascertain whether
he could truthfully make such a statement in his speech."
"If so, I submit to you, it was utterly and completely
irresponsible and reprehensible, but the Government submits that
that is not so, and that that was not a fact. The Government
submits that Congressman Johnson did know at that time that both
First Colony and Mr. Edlin were then under indictment in this very
Court, and that he nevertheless made those statements in the speech
which he delivered on June 30, 1960."
"Those statements, Members of the Jury, the Government submits
were completely untrue and deceitful."
cross-examination of Johnson, Transcript
"Q. Now, Congressman, you told Mr. Estabrook on December 20,
1961, in London, did you not, that this speech had been made at the
urging of several of your own people or of your own constituents?
Is that not a fact? A. Which conference are you speaking of with
"* * * *"
"Q. As a matter of fact, then, except for Mr. Buarque, whom you
term a constituent, no constituent of yours ever spoke to you about
making that speech on the floor of the House of Congress, is that
not correct? A. It could be. I do not recall."
"Q. You would be -- you would not deny it? A. No."
"Q. Is it not a fact that, prior to that speech, Congressman,
you had never discussed savings and loan programs or problems with
any of your constituents on the Eastern Shore of Maryland? A. Oh, I
think possibly I had. I do not know to what degree, but I want to
say, too, that the speech you refer to, there was a motivation that
Mr. Buarque testified that I was interested in a statewide election
for the Senate in 1964."
C. Wittke, The History of English
Parliamentary Privilege (Ohio State Univ.1921); Neale, The Commons'
Privilege of Free Speech in Parliament, in Tudor Studies
Compare The King v. Boston,
33 Commw.L.R. 386
(Austl.1923); The Queen v. White,
13 Sup.Ct. R.322 (N.
S.W. 1875); Regina v. Bunting,
7 Ont. 524 (1885), for
commonwealth cases dealing with the general question of liability
of legislators for bribery in distinguishable contexts.
78 Harv.L.Rev. 1473, 1474.
The court in that case attempted to distinguish between the true
privilege and unlawful conspiracies:
"And we hereby will not draw the true Liberties of
Parliament-men into question, to-wit, for such matters which they
do or speak in a parliamentary manner. But, in this case, there was
a conspiracy between the Defendants to slander the state and to
raise sedition and discord between the king, his peers, and people,
and this was not a parliamentary course."
"* * * *"
"That every of the Defendants shall be imprisoned during the
king's pleasure: Sir John Elliot to be imprisoned in the Tower of
London, and the other Defendants in other prisons."
3 How.St.Tr., at 310.
the account in Taswell-Langmead's English
Constitutional History (Plucknett ed.1960), at 376-378. After the
Restoration, some 38 years after the trial, Parliament resolved
that the judgment "was an illegal judgment, and against the freedom
and privilege of Parliament." The House of Lords reversed the
convictions in 1668. See
at 378, note 55.
Compare Thornhill v. Alabama, 310 U. S.
, and New York Times Co. v. Sullivan,
376 U. S. 254
expressions of the central importance to our political system of
uninhibited political expression as guaranteed to the general
populace by the First and Fourteenth Amendments.
See, e.g., Strode's Case,
one of the earliest and most
important English cases dealing with the privilege. In 1512,
Richard Strode, a member of Commons from Devonshire, introduced a
bill regulating tin miners which appears to have been motivated by
a personal interest. He was prosecuted in a local Stannary Court, a
court of special jurisdiction to deal with tin miners, for
violating a local law making it an offense to obstruct tin mining.
He was sentenced and imprisoned. Parliament released him in a
special bill, declaring
"That suits, accusements, condemnations, executions, fines,
amerciaments, punishments, corrections, grievances, charges, and
impositions, put or had, or hereafter to be put or had, unto or
upon the said Richard, and to every other of the person or persons
afore specified that now be of this present Parliament, or that of
any Parliament hereafter shall be, for any bill, speaking,
reasoning, or declaring of any matter or matters concerning the
Parliament to be communed and treated of, be utterly void and of
4 Hen. 8, c. 8, as reproduced in Tanner, Tudor Constitutional
Documents 558, 559 (2d ed.1930); see
at 248-249. During the prosecution of Sir John
Eliot in 1629, it was argued that Strode's Act applied to all
legislators, but the court held that it was a private act. 3
How.St.Tr. 294, 309. In 1667, both Houses of Parliament declared by
formal resolutions that Strode's Act was a general law,
"And that it extends to indemnify all and every the Members of
both Houses of Parliament, in all Parliaments, for and touching all
Bills, speaking, reasoning, or declaring of any Matter or Matters
in and concerning the Parliament, to be communed and treated of,
and is only a declaratory law of the antient and necessary Rights
and Privileges of Parliament."
I Hatsell, Precedents of Proceedings in the House of Commons
86-87 (1786); see
378, note 55. The central importance of Strode's case in English
constitutional history is persuasive evidence that the
parliamentary privilege meant more than merely preventing libel and
The Government, however, did introduce a reprint of the speech
in its case-in-chief, in order to show how the coconspirators made
use of it. Certain portions were shown to be outlined in red
because, as the prosecution's witness testified, "these were the
points most pertinent to what we were trying to put across, and for
ease in the person's reading it." App. 259. The use of a copy of
the speech in this context necessarily required the jury to read
those portions and to reflect upon its substance.
Note, The Bribed Congressman's Immunity from
Prosecution, 75 Yale L.J. 335, 347-38 (1965).
In oral argument, government counsel stated as follows:
"And so the question that we brought to the Court, and the only
question that we think is properly involved in this case now,
revolves around the taking of money to give a speech on the floor
Question from the Bench: "Well, was there [to be] a new trial on
the other phase of it?"
Government Counsel: "It [the Court of Appeals] ordered a new
trial on the other phase. And we have not brought that issue here.
We reserved it in our petition, but we did not argue it, I might
say, largely because it cannot be determined without reading the
whole record. The question in this case which we did bring here,
and which we think is the question involved, is this: Article 1,
Section 6, of the Constitution provides that, for any speech or
debate in either House, no member of Congress shall be questioned
in any other place. And, as we view it, the question is, does that
Speech or Debate Clause mean that Congress is without power under
the Constitution to make it a crime triable in court for a
Congressman to take money to make a speech?"
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE BRENNAN join, concurring in part and dissenting in
I concur in the limited holding of the Court that the use of the
Congressman's speech during this particular trial -- with an
examination into its authorship, motivation
Page 383 U. S. 187
and content -- was violative of the Speech or Debate Clause. I
also join the Court in its remand of the conspiracy count for a new
trial, this time purged of offensive matter. The Court's refusal to
decide the validity of the conviction under the seven substantive
counts, however, prompts me to dissent. In my view, the conflict of
interest counts are properly before us, raise important questions,
and should be resolved now, since the respondent will probably
raise these issues on his forthcoming reprosecution.
The Court explains its refusal to reach the substantive counts
by referring to a single statement made by the Government's counsel
at the outset of oral argument, p. 186, n. 16, ante.
the same colloquy, the Government remarked that it did not consider
the issues raised by the substantive counts to be of general
importance, and felt that the question of the effect of the tainted
evidence on these counts would unavoidably require an examination
of the entire 1 ,300-page record. Prior to oral argument, the
Government had argued these issues exhaustively in the Court of
Appeals, and had mentioned them in its petition for certiorari in
compliance with Supreme Court Rule 40(1)(d)(1) and (2), and in its
reply brief on the merits. Both in its reply brief and later in
oral argument, in answer to inquiries from the Bench, it contended
that the evidence, arguments and instructions on the conspiracy
count were distinct from the substantive counts. At best, then, the
Government's position is ambiguous, if not puzzling. [Footnote 2/1
] Beyond that,
Page 383 U. S. 188
the respondent himself specifically urged this Court to consider
the issues in his brief on the merits, pp. 100-101 and n. 86,
devoted 33 pages of argument to this phase of the case and
addressed himself to the questions on oral argument. Under these
unique circumstances, I think it is our duty carefully to
scrutinize all the facts and issues involved in the
After reading the record, it is my conclusion that the Court of
Appeals erred in determining that the evidence concerning the
speech infected the jury's judgment on the substantive counts. The
evidence amply support the prosecution's theory and the jury's
verdict on these count -- that the respondent received over $20,000
for attempting to have the Justice Department dismiss an indictment
against his coconspirators, without disclosing his role in the
enterprise. This is the classic example of a violation of § 281 by
a Member of the Congress. [Footnote
] See May v. United States,
175 F.2d 994, 1006
(C.A. D.C. Cir.); United States v. Booth,
148 F. 112, 117
Page 383 U. S. 189
The arguments of government counsel and the court's instructions
separating the conspiracy from the substantive counts seem
unimpeachable. The speech was a minor part of the prosecution.
There was nothing in it to inflame the jury, and the respondent
pointed with pride to it as evidence of his vigilance in protecting
the financial institutions of his State. The record further reveals
that the trial participants were well aware that a finding of
criminality on one count did not authorize similar conclusions as
to other counts, and I believe that this salutary principle was
conscientiously followed. Therefore, I would affirm the convictions
on the substantive counts.
I confess to some surprise that the Government almost abandoned
these issues when in this Court, even though the major question in
the case is the application of the Speech or Debate Clause. In the
first place, this Court has not had occasion to deal with the
conflict of interest statutes as applied to a Member of Congress
since 1906, Burton v. United States, 202 U.
, and they remain viable although lately revised,
Manning, Federal Conflict of Interest Law 14-73
(1964). Moreover, the Government itself has argued strenuously and
successfully in many cases that an erroneous conviction on one
count does not vitiate a conviction on other counts, especially
where concurrent sentences are involved, see, e.g., United
States v. Romano, 382 U. S. 136
United States v. Gainey, 380 U. S. 63
380 U. S. 65
Sinclair v. United States, 279 U.
, 279 U. S. 299
Barnard v. United States,
342 F.2d 309 (C.A. 9th Cir.),
382 U.S. 948. There are, in addition,
numerous cases in which the issue was raised in this Court and the
petitioner defendant was denied certiorari.
The sentence given was lenient -- six months on each count, but
all to run concurrently. The conspiracy statute, 18 U.S.C. § 371,
authorizes a five-year prison term and a $10,000 fine, and the
conflict of interest statute in effect at the trial permitted a
two-year sentence and a $10,000 fine for each violation, 18 U.S.C.