Gravel v. United States

Gravel v. United States

Opinion

 [*608]   [***592]   [**2618]  Opinion of the Court by MR. JUSTICE WHITE, announced by MR. JUSTICE BLACKMUN.

These cases arise out of the investigation by a federal grand jury into possible criminal conduct with respect to the release and publication of a classified Defense Department study entitled History of the United States Decision-Making Process on Viet Nam Policy. This document, popularly known as the Pentagon Papers, bore a Defense security classification of Top Secret-Sensitive. The crimes [****5]  being investigated included the retention of public property or records with intent to convert (18 U. S. C. § 641), the gathering and transmitting of national defense information (18 U. S. C. § 793), the concealment or removal of public records or documents (18 U. S. C. § 2071), and conspiracy to commit such offenses and to defraud the United States (18 U. S. C. § 371).

Among the witnesses subpoenaed were Leonard S. Rodberg, an assistant to Senator Mike Gravel of Alaska and a resident fellow at the Institute of Policy Studies, and Howard Webber, Director of M. I. T. Press. Senator Gravel, as  [**2619]  intervenor, ² [****6]   [***593]  filed motions to quash the  [*609]  subpoenas and to require the Government to specify the particular questions to be addressed to Rodberg. ³ He asserted that requiring these witnesses to appear and testify would violate his privilege under the Speech or Debate Clause of the United States Constitution, Art. I, § 6, cl. 1.

It appeared that on the night of June 29, 1971, Senator Gravel, 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. ⁴ Some weeks later there were press reports that Gravel had arranged for the papers to be published by Beacon  [*610]  Press ⁵ and that members of Gravel's staff had talked with Webber as [****7]  editor of M. I. T. Press. ⁶

The District Court overruled the motions to quash and to specify questions but entered an order proscribing certain categories of questions.  United States v. Doe, 332 F.Supp. 930 (Mass. 1971).  [****8]  The Government's contention that for purposes of applying the Speech or Debate Clause the courts were free to inquire into the regularity of the subcommittee meeting was rejected. ⁷ [****9]   [***594]  Because  [**2620]  the Clause protected all legislative  [*611]  acts, it was held to shield from inquiry anything the Senator did at the subcommittee meeting and "certain acts done in preparation therefor." Id., at 935. The Senator's privilege also prohibited "inquiry into things done by Dr. Rodberg as the Senator's agent or assistant which would have been legislative acts, and therefore privileged, if performed by the Senator personally." Id., at 937-938. ⁸ The trial court, however, held the private publication of the documents was not privileged by the Speech or Debate Clause. Id., at 936. ⁹

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