Gravel v. United States - 408 U.S. 606, 92 S. Ct. 2614 (1972)

Rule:

The Court thinks an injunction against interrogating a Senator's aide with respect to any act, "in the broadest sense," performed by him within the scope of his employment, overly restricts the scope of grand jury inquiry. A Senator's aide's immunity, testimonial or otherwise, extends only to legislative acts as to which the Senator himself would be immune. The grand jury, therefore, if relevant to its investigation into possible violations of the criminal law, and absent Fifth Amendment objections, may require from a Senator's aide answers to questions relating to his or the Senator's arrangements, if any, with respect to republication or with respect to third-party conduct under valid investigation by the grand jury, as long as the questions do not implicate legislative action of the Senator.

Facts:

A United States Senator read to a subcommittee from classified documents (the Pentagon Papers), which he then placed in the public record. The press reported that the Senator had arranged for private publication of the Papers. A grand jury investigating whether violations of federal law were implicated subpoenaed an aide to the Senator. The Senator, as an intervenor, moved to quash the subpoena, contending that it would violate the Speech or Debate Clause to compel the aide to testify. The District Court denied the motion but limited the questioning of the aide. The Court of Appeals affirmed the denial but modified the protective order, ruling that congressional aides and other persons may not be questioned regarding legislative acts and that, though the private publication was not constitutionally protected, a common-law privilege similar to the privilege of protecting executive officials from liability for libel barred questioning the aide concerning the publication. The U.S. petitioned for certiorari challenging the ruling. The senator also petitioned for certiorari seeking reversal of the court of appeals' decision insofar as it held private publication 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.

Issue:

Was the Senator’s aide immune from testifying regarding the alleged arrangement for private publication of the Pentagon Papers? 

Answer:

No.

Conclusion:

The Court held that the Speech or Debate Clause applied not only to a Member of Congress but also to his aide, insofar as the aide's conduct would be a protected legislative act if performed by the Member himself. However, the Court held that the Speech or Debate Clause did not extend immunity to the Senator's aide from testifying before the grand jury about the alleged arrangement for private publication of the Pentagon Papers, as such publication had no connection with the legislative process. The aide, similarly, had no non-constitutional testimonial privilege from being questioned by the grand jury in connection with its inquiry into whether private publication of the Papers violated federal law. Thus, the Court held that the Court of Appeals' protective order was overly broad in enjoining interrogation of the aide with respect to any act, "in the broadest sense," that he performed within the scope of his employment, since the aide's immunity extended only to legislative acts as to which the Senator would be immune.