combination of legislation, court decisions, and executive actions. The law in this area, as Lord Devlin once described

the law of search in England, "is haphazard and ill defined."/

It recognizes the existence and the necessity of the Executive's power. But the Executive and the Legislature are, as Lord Devlin also said, "expected to act reasonably." The future course of the law will depend on whether we can meet that obligation.

*/ Devlin, The Criminal Prosecution in England, 53 (1960).

65-728 - 76 - 30

Mr. RAYMOND L. GOOCH,

U.S. DEPARTMENT OF JUSTICE,

Washington, D.C., March 14, 1973.

Staff Counsel, Joint Committee on Congressional Operations, Longworth House Office Building, Washington, D.C.

DEAR MR. GOOCH: In accordance with your oral request made to the writer some weeks ago, I append hereto a list of cases which have been referred to the Department of Justice in which suit was instituted against a member of the Congress or one of its officers or against other legislative officials, with a brief description of the nature of the suit, whether or not representation of this Department was requested, and whether such representation was undertaken. The list is necessarily incomplete because the Department does not classify these cases to reflect whether the defendants or any of them are connected with the Legislative Branch.

At the outset, it may be helpful to you and to members of the Joint Committee to be apprised of the Department's view with respect to its authority to represent members of the Congress, its officers, other legislative officials and their respective employees, and the broad guidelines the Department utilizes in determining whether representation may be accorded.

Section 118 of Title 2 of the United States Code provides that the United States Attorney, under the supervision of the Attorney General, shall represent an officer of either House of Congress in any suit brought against him for or on account of anything done by him in the discharge of his official duty, provided that such officer requests such representation. Officers of either House include the Speaker, President Pro Tem, Secretary, Clerk, Sergeant at Arms, Doorkeeper, etc. It does not, in our view, encompass members, as such, other than the Speaker and the President Pro Tem in connection with the performance of their duties as such.

Although there is no obligation for the Department to represent members of either House, under 2 U.S.Č. 118, it has been the policy of the Department to represent members of either House when requested to do so by such member, if the action against him arises out of or on account of anything done by him in the discharge of his official duty, that the interests of the United States are involved and that such interests do not conflict with the private interests of the Congressman, and there is no conflict between the representation of the Congressman or other legislative official and our representation of another defendant in the action who is an official in the Executive Branch.

The authority of the Attorney General to accord representation to a member of either House under the foregoing circumstances, as a matter of discretion and policy, is derived from 28 U.S.C. 517 and 518. The exercise of this discretion by the Attorney General has been recognized by the courts in analogous situations. See Booth v. Fletcher, 101 F.2d 676, cert. den., 307 U.S. 628; People v. Graber, 394 Ill. 362, 68 N.E. 2d 750.

It should be noted that in many instances members of Congress who are sued do not request representation by the Department, preferring to retain private counsel. With respect to your specific inquiry about suits involving alleged abuse of the franking privileges by individual Congressmen, a few have come to our attention, but no representation has been requested in any and we have given none. Those few which have come to our attention are included in the attached list.

Sincerely,

IRVING JAFFE,
Deputy Assistant Attorney General,
Civil Division.

Enclosure.

CASES IN WHICH THE DEPARTHENT OF JUSTICE
REPRESENTED OR IS REPRESENTING

MEMBERS OR OFFICERS OF CONGRESS OR
OTHER LEGISLATIVE BRANCH OFFICIALS

1.

2.

McSurely, et al. v. McClellan, et al., Court of
Appeals, District of Columbia, No. 516-69. Civil
suit against the Chairman, members and various
staff aides of the Senate Permanent Subcommittee
on Investigations of the Government Operations
Committee, for declaratory judgment that compliance
with a subpoena issued by the Subcommittee was not
required and for an injunction against the institu-
tion of criminal proceedings for contempt and for
damages. The legislative defendants have requested
and are receiving representation from the Department.
The Committee has also retained private counsel, but
the Department retains control of the defence of the
suit. A motion by the defendants to dismiss the suit
or for summary judgment is pending.

Freeman v. United States (S.D. Indiana), Civil Action
No. 72C380. A suit against the United States, the
House of Representatives, the Senate, and the late
President Johnson, challenging the constitutionality
of the Gun Control Act of 1968. Department moved to
dismiss on behalf of all the defendants. The
plaintiff, appearing pro se, has opposed the motion
to dismiss and sought to amend his complaint and to
drop all parties originally named, except the United
States of America, and to add as a party defendant,
the Secretary of the Treasury. The disposition of
both motions is still pending.

3. Roberts v. Mumford (District Court, District of Columbia) Civil Action No. 2259-72 Suit against the Librarian of Congress for unlawful failure and refusal to promote the plaintiff, allegedly in violation of applicable statutes and regulations. An answer has been

4.

5.

6.

7.

Washington Activity Groun v. White (Court of Appeals, D.C. Circuis, Nɔ. 72-1445). Suit against the Architect of the Capitol, Chief of Capitol Police and Sergeants at Arms of the Senate and House for an injunction against interference by defendants with an Anti-Vietnam War Display of the plaintiffs in the crypt of the Capitol. District Court dismissed the complaint and the plaintiffs have appealed. Case not yet set for - oral argument.

Bailey v. Eastland (District Court, District of Columbia),
Civil Action No. 1805-72. Suit by an inmate of a state
prison (Hichigan) against Senator Eastland for a writ
of mandamus to compel the Senate Judiciary Committee
to investigate the State Judge and Prosecutor in connec-
tion with the criminal prosecution of the plaintiff.
Suit dismissed by the district court on November 29,
1972.

Ringer v. Humford (District Court, District of Columbia), Civil Action No. 2074-72. Suit against Librarian of Congress alleging race and sex discrimination in promotion policies and unlawful disregard of an administrative finding of discrimination. By opinion and order of February 28, 1973 District Court Judge Jones granted plaintiff's motion for summary judgment, declared the defendant's prior appointment of a candidate to the position of Director of Copyrights was void, and restrained the defendant from making any appointment to that position unless the regulations of the Library of Congress were properly followed and the discriminatory policies against the plaintiff were corrected.

Doe v. McMillan (District Court, District of Columbia),
Civil Action No. 56-71; Court of Appeals, District of
Columbia Circuit, No. 71-1027, Supreme Court No. 71-
6356. Suit against the Chairman and members of the House
District of Columbia Committee, various of its staff
members, the Superintendent of Documents and various
officials or employees of the D, C. Government for
declaratory judgment, injunction and damages in a class
action to enjoin publication regarding school children
in District of Columbia schools in violation of the
constitutional, privacy and statutory rights of children.
The district court alsmissed the complaint and the
Court of Appeals upheld the dismissal one judge

:

8.

dissenting. The Supreme Court granted certiorari.
The Department represented the federal defendants
in the district court and the court of appeals
levels; however, because of possible inconsistency
between the positions which the Solicitor General
had already taken in Gravel v. Laird, and positions
which should be taken in the instant case, the
Solicitor General suggested that the members of
Congress and the individual federal defendants
should retain private counsel. The legislative
respondents have done so.

:

9.

Eckert v. Senate and House of Representatives (E.D.
Pennsylvania, Civil Action lio. 70-3530). Suit
charging that the Congress of the United States has
acted or failed to act in such way as to deprive
plaintiff of his constitutional rights as a citizen
apparently because it has not exercised, among other
things, its authority to raise revenue, levy and
collect taxes in such manner as will cischarge all the
debts of the United States and provide its citizens
with all the services to which they are entitled such
as welfare, police, fire and health protection.
Another suit against the Clerk of the District Court
in the Eastern District of Pennsylvania sought to
restrain the Clerk from charging or collecting any
fee or exacting any bond for cost from any citizen
who seeks to use the courts as a means of petitioning
the Government for redress of grievances (E.D. Pa,
Civil Action No. 71-200). The Department represented
the defendants in both suits and both were dismissed on
August 19, 1971.

Albaugh v. Agnew, et al. (D. Md., Č.A. No. 19599).
Suit against the Vice President, Clerk of the House
of Representatives, the Secretary of State of Maryland
and the Commissioner-Hayor of the District of Columbia,