Examination of Witness (Questions 887
TUESDAY 17 FEBRUARY 1998
887. Mr Johnson, may I welcome you to this Committee.
We appreciate very much your coming here today to help us. As
I understand itsubject to your approval, of courseyou
are assisting us unofficially in that a record is going to be
made of what is said but nothing that you tell us will be published
without our first obtaining your consent. Is that your understanding
of the arrangement that we are making this morning and is that
acceptable to you?
(Mr Johnson) Very satisfactory. It is
a pleasure to be here.
888. The one matter that I would like to raise
with you arises out of discussions which have very much concerned
this Committee and that is the issue of bribery. Before I do that,
can I just check with you whether privilege is an expression which
is used in Congress?
A. Yes, it is.
889. Does it function in much the same sort
of way as at Westminster?
A. There are so many similarities because our
rules and our traditions in large measure are based upon the traditions
of this Parliament. The protection under the freedom of speech
or debate clause is a constitutional protection under Article
1 of the United States Constitution which cannot be altered by
statute. It is a basic privilege that inures to the benefit of
the institution, as I heard discussed, through its members. There
is also the constitutional privilege of freedom from arrest during
sessions and travelling thereto, except for felony and breach
of the peacea broad exception. The freedom from arrest
which includes the freedom that members enjoy from being subpoenaed
and having to respond to subpoenas during the session, is meant
to secure the sanctity and continuity of the sessions of the Congress,
and it is an institutional privilege. We also have a House rule
with respect to privilege that allows certain issues to supersede
all others. Privileges of the House can be whatever a particular
Member believes, subject to the ruling of the Speaker, to be a
matter of very immediate concern involving the dignity of the
House and the integrity of the House's proceedings. In that context
the term privilege is a procedural notion that allows a resolution
to come before the House superseding all other questions. There
are limits on the immediacy with which those issues may be debated
in the House of Representatives. The majority/minority leaders
enjoy immediate privilege. Other members are subject to up to
two days notice of the text of their resolution. There is also
a so-called personal privilege which allows a Member to respond
to press accusations of impropriety in the member's official capacity.
It is really just an extended debate period where again a member
who has been attacked, normally in the press, can respond in the
chamber for up to one hour to accusations of official impropriety.
So that is another notion of privilege. As I see your focus in
the brief time I have been privileged to attend, you are looking
at the speech or debate clause. We have on the statute books in
the United States a criminal statute of bribery which isand
I am not totally familiar with it because it is not my responsibility
to interpret the criminal laws or to advise members with respect
to the criminal lawsa statute of general applicability
to federal officials. I have given your Committee clerks a copy.
It is not uniquely applicable to members of the House as such.
The code of official conduct, however, which is part of House
Rule 43 currently, does have a general restriction against members
receiving compensation in return for influence improperly exercised.
It is a very generally stated restriction against bribery, accepting
money in return for speeches or other legislative activity. I
furnished your Committee clerks with a seven page contemporary
summary of court decisions that have outlined the limits of our
speech or debate protections as they inure to the members and
to the Congress as an institution. From what I gather the protection
is similar to the types of legislative activity that are protected
by your Bill of Rights, certainly speeches on the floor, activity
in committee, but activity in a broader sense, not just speech
making but the introduction of Bills, the production of reports
and other activity that is properly legislative. One interesting
new development within our jurisprudence, with regard to members
who are required to disclose their private finances, or who are
called before our Ethics Committee (Standards of Official Conduct)
in executive session to testify about their conduct, is the extent
to which that testimony or disclosure is protected against a collateral
use in the courts in the event that the member is subsequently
or simultaneously being prosecuted in a criminal case or questioned
in a civil action. The court cases are less clear with regard
to a member who is not making a speech in open session, but rather
trying to justify or defend himself before our Ethics Committee
in closed session, and whether that evidence, if ultimately released
by the committee, can thereafter be used during a court proceeding.
As that area of jurisprudence develops, I would be happy to furnish
information to you for whatever benefit might accrue. That is
quite a long-winded response to the various usages of the notion
of privilege under our system.
890. I think that is a very helpful bird's-eye
view. On the question of bribery, we have been shown a copy of
the decision of the Supreme Court in Brewster. That was
1972. Is that still the law in the United States?
891. Can you help me, then, on this. As I understand
the judgment of the majority given by Chief Justice Warren Burger,
the approach to the speech or debate clause immunity in this field
is that, putting it loosely, if a member receives a bribe in return
for subsequently doing what would be undoubtedly a legislative
act, such as voting, that conduct is none the less amenable to
the criminal law, because the prosecution can prove the necessary
ingredients without having to have recourse to anything that has
happened in Congress. Pausing there for a moment, have I roughly
got that right so far?
A. Yes, I believe so.
892. On that footing, are there any types of
conduct which would not be amenable to the criminal law by virtue
of the speech or debate clause?
A. Activity of members outsideif I understand
your question correctlythe formality of the congressional
process, such as speech-making, interviews in a television studio,
constituents' lettersactivity which may tend to help an
incumbent get re-elected, but which is not legislative activity,
is cognisable under whatever statute is properly within a court's
jurisdiction to construe in criminal or civil litigation, including,
I would think, the bribery statute. I should have familiarised
myself with the Brewster case, but I think the basic notion
of allowing the courts and the prosecutors independently to develop
a line of evidence which does not include evidence of direct legislative
activity is, within our jurisprudence, properly within the separation
of powers, subjecting members of Congress, as part of a broader
defined category of federal officials to prosecution for bribery,
without that evidentiary admissibility of an actual legislative
act. There is so much else, I supposeand I am not a criminal
lawyerthat can be adduced in a trial, that will tend to
prove the improper acceptance of a bribe, without the formal legislative
act necessarily being part of the evidence.
893. What I am concerned to understand is what
are the actual types of conduct which would be immune from criminal
prosecution only because they fall within the speech or debate
clause? If Brewster carries with it the proposition that
a bribe in return for voting in Congress is not immune from prosecution,
I have difficulty in understanding what types of conduct would
be immune from prosecution by virtue of your speech or debate
clause. Can you help me?
A. I am not sure I can. I think the distinction
is between introduction into evidence of the act of voting, or
the speech-making, or the introduction of a bill or other activity
attendant to the legislative process, and the ability to prosecute
apart from that evidence. I believe the ultimate desire is to
protect independence of Congress as an institution, while it is
properly functioning as a legislative branch, from intrusion in
the courts, to protect that degree of independence by protecting
the individual members. I am not in a position to say to you what
specific immunity defences, in the wake of Brewster, are
available merely because they involve legislative activity. That
is not my area of expertise.
894. You may not be able to help me on my further
question. If so, please say. We are not attempting to score points,
we are trying to get the benefit of your help on those matters
on which you have your very considerable expertise. Take a case
such as Brewster where there has been, so to say, bribery
in respect of a matter which is none the less amenable to criminal
prosecution. Let us take the case, indeed, of a bribe in return
for voting. The prosecution can prove its case without having
to go inside Congress, but would it be open to the member who
has been charged himself then, as part of his defence, to give
evidence of what he has said in the chamber, of what he had done
by way of voting and why he had done it? Would it be open to the
member therefore to introduce matters which, on their face, would
plainly fall within, so it would seem, the speech or debate immunity?
A. There is some notion of waiver, to the extent
that that would be separately litigated, and to the extent that
other members' rights and interests might be involved there might
be a separate litigation on the extent to which the House as an
institution may claim the privilege before the member who would
otherwise wish to waive his own immunity could be compelled to
testify. So I would think that in that context, before the trial,
before the actual testimony was elicited, there might be litigation
by other members, or by the House as an institution. Our Congress
has a capability, through the office of Legal Counsel, of representing
the institutional interests of all the members, not just the member
under scrutiny or the member who is actually testifying. So those
issues, under our system, I think could be separately litigated
as to the rights of other members and the House as an institution
serving a speech or debate protection, before that particular
member chooses to waive his own protection.
895. Would that be debated and voted on in the
A. Not necessarily. It could be raised as a
question of the privileges of the House, by a Leader offering
a resolution that would authorise the House Counsel to take a
certain position in the litigation. Or under our rules there is
the existence of a Legal Advisory Committee consisting of the
Speaker, the majority and minority Leaders and the majority and
minority Whipsfive memberswho in turn have utilised
a new permanent office of House Counsel (who incidentally have
prepared the written information which I have presented to you).
They could be called upon to develop an institutional brief by
the Legal Advisory Committee, without necessarily having authority
of the full House, but any Leader could go to the full House and
either restrict or expand the ability of the Legal Advisory Committee
to present a brief on behalf of the House.
896. If there were an allegation of bribery
against a member where it was so patently clear that the speech
or debate privilege applied, and that therefore it was not appropriate
for the criminal courts to deal with it, could the House itself
deal with it? If so, how?
A. Yes. The House, being only a two-year body
in existence, is a very temporary institution. While it has in
place a mechanism deriving directly from Article 1 of the Constitution,
which says that each House shall punish its members for disorderly
behaviour and, with the two-thirds vote, be able to expel a member,
the ability of the House to gather information through the ethics
process and then to provide a quasi-judicial hearing for the accused
member is limited by time over a two-year period, because once
the constitutional term of that House ends, it does not necessarily
continue as an investigation in the new Congress. Certainly if
the member is not elected or resigns, the House would normally
not be able to continue the investigation of the former member.
If, however, the member is re-elected, the House can, through
its Ethics Committee, continue the investigation, but with limited
sanctions at its disposal. I mentioned the ultimate sanction of
expulsion, but these sanctions are there to protect the ability
of the House to continue to function, and to protect the dignity
of its deliberationscensure, reprimand (which is a lesser
form of censure), a fine, a letter of reproval, disqualification
from certain committee proceedings. There is always the question,
while a member is in office, can a member be deprived of his ability
to vote? There are certain party rules which restrict the ability
of an indicted member to proceed in committees. Chairmen and sub-committee
chairmen have to step aside, for example, if they are indicted.
All these potential sanctions are there in a very temporary sense
and primarily to ensure the integrity of the process. As far as
the long-term ability of the House to punish one of its members
is concerned, the punishment ultimately does not extend beyond
expulsion. I have been curious, in the ongoing investigation of
Neil Hamilton and other Conservative Members of the last Parliament,
that the new Parliament is continuing in some formMr Hastings
and I discussed thisto look at that activity. We have right
now a member from California whose name is Jay Kim, who has pleaded
guilty to improper campaign finance disclosure and has pleaded
guilty to several misdemeanours to avoid a felony conviction.
He is to be sentenced in two weeks by the Federal District Court.
The question has been raised, if he resigns, as to what our Ethics
Committee's ongoing role, if any, is. Once he is no longer a member
the rules of the House really take away the jurisdiction of the
Ethics Committee to investigate further. Obviously he cannot be
expelled, he cannot be censured, he cannot be reprimanded, because
he is no longer a member, but that committee retains, under our
rules, the ongoing requirement of filing a report on the case.
Can they continue to develop their own body of evidence, as it
were, to write a more intelligent report than they would be able
to do right now where all they really have is the court record?
That is a question with which they are faced. My long-winded answer
is basically to suggest the limits of the ability of the House
to continue to look at conduct, once the member is no longer a
897. I have one very short supplementary question,
my Lord Chairman. The collection of evidence and its presentation
would have certain difficulties, but would not be impossible,
is that the position?
A. That is correct. This became very obvious
to the House of Representatives during the two-year investigation
of Speaker Gingrich. As many of you will have read, he was under
investigation on allegations brought by Democratic members of
the House as well as outside groups such as Common Cause and others.
Those charges were referred to our Ethics Committee in the last
Congress. For over a year the committee was very deliberate in
going through the step-by-step procedures which are outlined in
the Ethics Committee's own rules and in the rules of the Housethe
time for the respondent to become aware of the charges against
him, to collect his own evidence, and then the investigative sub-committee
phase of the proceedings. There the Ethics Committee forms itself
into a sub-committee (a so-called investigative sub-committee)
which gathers the facts. That went on for over a year. By the
time that they were about ready to file a report at the end of
1996, the Congress had ended. The new Congress in 1997, with Speaker
Gingrich re-elected, began on opening day, a very interesting
day, as the Speaker's right to take the oath as Speaker was challenged
because these charges were still pending. The House let him be
sworn as Speaker but adopted a resolution referring the matter
back to the newly constituted Ethics Committee. But a question
arose on the constitution of a new committee? There is no automatic
continuity. Some of the members of the old committee had resigned,
or retired or did not want to serve one day longer. The House
put in place just ten hold-over members from the prior committee
as a new select committee to continue to look at Speaker Gingrich's
conduct, and told them to report within a month. That was the
deadline, to report within a month. During that time the committee
recommended a combination of sanctions: a so-called reimbursement
for the cost of the two-year investigationa considerable
$300,000 reimbursement, they did not call it a fineand
a reprimand, which is unprecedented for a Speaker himself to be
reprimanded. That ability to transcend one Congress to the other
took special action, but it happened, and so Congress can streamline
its investigative procedures if it has to.
898. Do I understand, Mr Johnson, from something
you said earlier, that an individual member can waive protection
of the speech or debate clause as far as he is concerned?
A. I am not certain in my own mind as to the
extent to which that can be done in a court of law because of
the institutional interests. Even though there might be a waiver
by the indicted member, for example, the Congress could step in
with an amicus brief or as a party to attempt to restrict
the ability of that particular member to waive the privilege.
Lord Mayhew of Twysden
899. Arising out of that, can I ask youand
forgive me if you feel you have answered this alreadywhether
it is the case that a court will refuse to hear any evidence about
the way in which a member of Congress has conducted himself in
a speech or debate, construed as it was in Brewster which
was actually debating things in committee or on the floor? I appreciate
you are not familiar with this case. Indeed, we were not at all
familiar with it until we were given it a day or so ago. I am
looking at the record of page 11 of the transcript of the judgment
in the Supreme Court. The reason for the decision which disallowed
privilege seems to be that "When a bribe is taken, it does
not matter whether the promise for which the bribe was given was
for the performance of a legislative act as here or, as in"
the case of Johnsonno relation, I am sure"for
use of a congressman's influence with the executive branch."
So you do not need to go into any evidence about whether the corrupt
conduct which was promised was performed or not, because the bribe
is a bribe, and that is self-contained and is a criminal offence.
On the next page we read that one of the dissenting judges "rests
heavily on the fact that the indictment charges the offense as
being in part linked to Brewster's action, vote and decision
on postage rate legislation." The majority comment, "This
is true, of course, but our holding in Johnson precludes
any showing of how he acted, voted, or decided." From that
it seems to me, as a complete layman, that you are not allowed
to give evidence which includes the acceptance of any evidence
called in such a case of how the congressman or the senator voted
or behaved on the floor or in committee. I was wondering whether
that accords with your understanding of the practice or not? If
it were the case, it looks as though he cannot waive it even if,
in his own defence, he might wish to say, "Well I dispute
I took a bribe, and lo and behold, look how I was speaking long
before the alleged bribe was ever offered."
A. I am not sure the court would self-enforce
the exclusion. I think that could be separately litigated. As
I express these protections as becoming an institutional interest,
I should put in context the fact that there has only been a Legal
Advisory Committee for the House for the last ten or 15 years,
so that the Brewster and Johnson cases preceded
any informed institutional ability that the House had separately
to litigate the admissibility of that kind of evidence in court.
So that in those daysI am just guessingunless Senator
Brewster or Congressman Johnson themselves, or through their attorneys,
attempted at an appropriate time to insist upon the inclusion
of that evidence, then it might have been admitted. But currently
there is institutionally in place a mechanism where either House
can come in, whether or not the court takes the initiative or
the attorney for the defendant might take the initiative, and
separately litigate, in advance of the proffering of those questions,
the very issue of whether there is a speech or debate protection.
That is the modern way the Congress could act as an institution.
Again, I have never been in court to see one of these issues litigated,
but I do not view it necessarily as a self-imposed restriction
that a federal district judge, for example, would think had been
imposed on him by the Constitution. It would have to be called
to the court's attention by attorneys for one of the parties or,
in an amicus brief, submitted by the House as an institution.