George Blue stated that Defendant Latta did indicate that no threat was madeon his life by Plaintiff, but that Plaintiff had put undue pressure on Defendant Latta.

13. After a conversation of approximately one hour with Defendants Larry Paul and George Blue said agents indicated to Plaintiff that the whole episode should be kept quiet and from the press.

14. Plaintiff is a United States citizen and a voting resident of the Fifth (5th) United States Congressional District. He contacted a United States Congressman in order to petition his government for redress of grievances.

15. Plaintiff's appeal to Defendant Latta, his Congressman, for assistance and intervention is a protected right guaranteed by the First and Fourteenth Amendments.

16. Defendant Latta's actions in utilizing the FBI was meant to curtail the Plaintiff's rights to petition government.

17. Palintiff at no time threatened or put undue pressure on Defendant Latta in his conversations with Defendant Latta, and the utilization of the FBI by Defendant Latta is meant to harass Plaintiff because of Plaintiff's exercise of his right to petition government.

18. Defendant Latta and Defendants Larry Paul and George Blue's actions have resulted in irreparable harm to Plaintiff and leaves him without an adequate remedy at law since he is being denied the right to contact his United States Congressman or else suffer the harassment of FBI investigations. 19. The case and controversy exceeds $10,000.00 in damages.

RELIEF

20. That a declaratory judgment issue declaring the following:

(a) that Plaintiff as a citizen of the United States has a right as guaranteed by the Constitution to petition his Congressman;

(b) that Defendant Latta's action in reporting Plaintiff to the FBI was violative of Plaintiff's rights as guaranteed by the Constitution;

(c) that the Defendants Larry Paul and George Blue's investigation of the Plaintiff because of his contact with Defendant Latta was violative of Plaintiff's unencumbered right to petition government.

21. That a preliminary and permanent injunction issue:

(a) requiring the Defendants Larry Paul and George Blue to expunge any and all FBI records pertaining to Plaintiff as a result of Defendant Latta's charges;

(b) enjoining the Defendants Larry Paul and George Blue from harassing the Plaintiff by visitation to home, place of work or anywhere else because of Plaintiff's exercise of his right to petition government or as a result of this lawsuit.

22. That a writ and mandamus issue against Defendant Latta compelling Defendant Latta to do the following:

(a) carry out and perform his functions as a United States Congressman in a manner so as not to deny Plaintiff his right to petition government; (b) to refrain from filing charges with the FBI regarding Plaintiff because Plaintiff seeks to petition government through Defendant Latta;

(c) to fulfill those duties owed Plaintiff by Defendant Latta in his capacity as a United States Congressman; particularly to permit Plaintiff to seek a redress of his grievance and the right to petition government through Defendant Latta without becoming subject to FBI or any other governmental investigation.

23. That compensatory damages in the amount of $15,000.00 be awarded Plaintiff.

24. That punitive damages in the amount of $100,000.00 be awarded Plaintiff. 25. That reasonable attorney fees be awarded.

26. For any and all other relief the court deems appropriate.

Respectfully submitted,

TED IORIO.

Exhibit 4

OPINION IN STEWART V. BLAINE1

1 Mac Arthur (D.C. Supreme Court Rpts.) 453 (1847)

(At Law. No. 10610.)

"The House of Representatives has power to commit for contempt, and when a party is found guilty of a contempt the order of the House directing his commitment is a complete protection to the Speaker who orders him into custody of the Sergeant-at-Arms.

STATEMENT OF THE CASE

This is an action of trespass for assault and false imprisonment. The declaration contains four counts, the first of which alleges that the defendant on the 29th of January, 1873, in the District of Columbia, caused the plaintiff to be assaulted and seized, and forced and compelled to go to a room in the Capitol building, and to be there imprisoned, &c.; and the same allegations are in substance repeated in each of the remaining counts.

To this declaration the defendant pleads the general issue, and also pleads in justification that during all the time mentioned in the declaration a session of Congress was holden in said District, and the defendant was a member of the House of Representatives and the Speaker thereof; that at the said session, and before the said time, a committee of the House was duly appointed under a resolution thereby adopted, and was instructed to inquire into and report to the House upon certain matters of great importance to the United States, and was also given authority to send for persons and papers; that the plaintiff was afterward called and sworn as a witness before said committee to testify concerning the matters aforesaid, and upon being asked by the committee certain questions of and respecting the same matters, did wholly decline and refuse to answer them; and that the said committee then submitted to the House a report setting forth, among other things, the refusal of the plaintiff to answer the said questions, and charging him with a contempt of the House.

That thereupon it was ordered by the House that the Speaker issue his warrant, directed to the Sergeant-at-Arms, commanding the latter to take the plaintiff into custody and bring him to the bar of the House to show cause why he should not be punished for a contempt, and in the mean time to keep him in custody to await the further direction of the House.

That in pursuance of said order the defendant, being such Speaker, issued his warrant directed to the Sergeant-at-Arms, whereby, after reciting the said order, the latter was commanded to execute the order therein recited, and the said warrant was delivered by the defendant to the Sergeant-at-Arms to be executed in due form of law; and that by virtue and in execution of said warrant, the Sergeant-at-Arms afterward arrested the plaintiff and took him in custody, and, as soon as he conveniently could do so, brought him before the bar of the House.

That thereupon (the plaintiff first being heard by the House concerning the premises) it was in and by the House resolved that the plaintiff had failed to show sufficient cause why he should not answer the said questions, and that he be "considered in contempt of the House for failure to make answer thereto:" and it was furthermore in and by the House resolved as follows, to wit: "That. in purging himself of the contempt for which the plaintiff was then in custody, he should be required to state to the House forthwith, or as soon as the House should be ready to hear him. whether he was then willing to appear before the said committee to whom he had thitherto declined to make answers, and make answer to the questions for the refusal to answer which he had been ordered into custody; that if he answer that he is ready to appear before the said committee and make answer, then he should have the privilege to so appear and answer forthwith, or so soon as the committee could be convened,

1 See exhibit 83, p. 506 in the appendix.

and that in the mean time he remain in custody; that in the event that he should answer that he is not ready so to appear before said committee and make answer to the said questions so refused to be answered, then that he be recommitted to the said custody for continuance of such contempt, and that such custody should continue until he should communicate to the House, through the Speaker, that he is ready to appear before the said committee and make such answers, and until further order of the House in the premises;" whereupon the defendant, in the discharge of his duty as Speaker under the lastmentioned resolution of the House, and while the plaintiff was still before the bar of the House, asked the latter whether he was then willing to appear before the said committee and answer the questions for the refusal to answer which he had been ordered into custody; and that the plaintiff declared that he was not then willing or ready to appear before the said committee and answer the said questions.

That in pursuance and for the execution of the said last-mentioned resolution of the House, and in discharge of his duty thereunder as Speaker, the defendant did then and there recommit the plaintiff to the custody of the Sergeant-at-Arms, by whom he was thenceforth kept in custody until discharged therefrom by order of the House.

The third plea contains the same allegations substantially as the second, being pleaded in bar of all the counts of the declaration.

1. The plaintiff joined issue on defendant's first plea.

2. The plaintiff demurs to the defendant's second and third pleas, and says the same are bad in substance.

3. One of the matters of law intended to be argued on each of said pleas is, that neither of them does set forth specifically, nor in substance, the questions which said pleas allege that the plaintiff declined to answer, and for which the plaintiff is alleged to have been in contempt of the authority of the House of Representatives of the Congress of the United States.

The court orders the demurrers in this case to be heard at the general term in the first instance.

Paschal and Moore, for the plaintiff, claimed in support of the demurrer that the questions asked (which, although not set forth in the pleas. appear in the fourth count of the declaration) referred to privileged communications made to the plaintiff by his client, while the relation of lawyer and client existed, and that he was not in contempt for refusing to answer the same. That the House of Representatives had no authority under the Constitution to prosecute the inquiry upon which their committee was engaged when the said questions were asked. 1 Shar's Blackstone, 163, note 34; Texas, 668; 1 Abbott Ct. Ct., 43; 3 Macaulay's His., 309.

G. H. Williams, Attorney General, and A. J. Bentley, for defendant, made the following points:

1. The House of Representatives has power to commit for contempt.

This proposition, though at one time a subject of grave discussion, will hardly be controverted now; the question as to the power of the House to commit for a contempt having been judicially determined by the Supreme Court of the United States, in a case involving that very point, which was carried un from the old circuit court of the District of Columbia. Anderson vs. Dunn, 6 Wheat., 204; 1 Kent, Com., 7th ed., p. 250, note A; Story on Const., 4th ed., sections 846, 849; Ex parte Nugent, 1 Am. Law Jour.. (N. S..) p. 107, Rawle on the Const.. pp. 47. 48; Sergeant's Const. Law, p. 354. Act of January 24, 1857, sec. 1, 11 Stat., 155; Wickelhousen vs. Willet, 10 Ab. Pr. Rep., 164.

2. As incident to the power referred to above, the House has also the power, on a charge of contempt, to cause the person charged to be taken into custody, and to be brought to the bar thereof to answer the charge; and it alone is the proper judge when this power is to be exercised. Gosset vs. Howard, 10 Q. B.,

452.

3. The House has the exclusive right to determine whether a party brought before it on a charge of contempt is guilty of the charge; and its decision is final, and cannot be questioned elsewhere. Anderson vs. Dunn, supra; Stockdale vs. Hansard, 9 Adolphus & Ellis, 169; 3 Privy Council, 572: 7 Wis., 641: 24 N. Y., 74; Brass Crosby case, 3 Wils., 199; Beaumont vs. Barrett, 1 Moore's P. C. Cases, 80; Ex parte Kearney, 7 Wheaton, 38; Sheriff of Middlesex, 11 Adolphus & Ellis, 273; Burdett vs. Abbott, 14 East., 1 and S. C., 5 Dow., 185,

4. The House having by resolution adjudged the plaintiff guilty of a contempt, the order of commitment for such contempt, made by the House, is a complete protection to the defendant for his acts done in the due execution thereof. Burdett vs. Abbott, supra.

The defendant, as is admitted by the pleadings, in discharge of his duty as Speaker under that order, and while the plaintiff was still at the bar of the house, asked the latter whether he was then willing to appear before the committee and answer. This the plaintiff declared he was not willing to do, and thereupon the defendant, in execution of said order, and in discharge of his duty as Speaker thereunder, committed the plaintiff to the custody of the Sergeant-at-Arms, by whom he was thenceforth kept and detained until discharged from custody by a further order of the House.

The resolution of the House that the plaintiff was guilty of a contempt, and the order of the House directing his commitment therefor, were in conformity to the power of that body; and it does not appear that, in executing such order, the defendant did anything more than it was his duty to do. Would it not be monstrous, then, to hold him liable to an action for merely obeying an order of the House, made in the exercise of a power unquestionably belonging thereto? CARTTER, C. J., delivered the opinion of the court:

The whole subject of controversy in this case, as presented to the court, is resolved in the question, Had the House of Representatives of the United States jurisdiction in the premises?

If jurisdiction over the subject and person of the plaintiff resided in the House, the ministerial functions discharged by the Speaker and Sergeant-atArms in the premises were justified in the jurisdiction. Under the principles of law regulating the relations of ministerial officers to those around them, and affected by their acts, two questions are fundamentally important. Has the authority issuing process jurisdiction of the subject, and of the person against whom process goes? These two questions answered affirmatively, nothing remains in the determination of the question as to their right to execute the process. Their liability, thenceforward, is regulated by the responsibility as to the manner in which they do it, a subject not made matter of complaint in this case.

The question of power to punish for a contempt in the case now before the court was settled by the Supreme Court of the United States in the case of Anderson vs. Dunn, 6 Wheaton, 204, more than half a century ago, after a stout contest, and upon thorough deliberation. This authority has been uniformly acquiesced in for over fifty years, and until reversed must be regarded as conclusive with this court. If authority, the subject of this controversy is stare decisis.

In making this decision, the court confines itself strictly to the adjudication of the case made. We are not engaged in the investigation of the rights of a citizen held in durance vile under an application by writ of habeas corpus. The demurrer to the pleas is overruled.

The case of Stewart vs. Ordway involves the same questions, and comes before the court in the same manner, being an action against the Sergeant-atArms for the same alleged trespasses. There will be the same judgment as in the case just decided.

Exhibit 5

EXCERPT FROM BRIEF ON BEHALF OF LIEUTENANT CALLEY IN UNITED STATES COURT OF APPEALS

(DECEMBER 27, 1974, PAGES 70-98)

III. The District Court was Correct in Holding that the House of Representatives' Actions in Refusing to Release the Testimony Given Before its Subcommittee Operated to Deny Petitioner His Sixth Amendment Right of Confrontation and Compulsory Process and Due Process of Law.

A. INTRODUCTION

During the Petitioner's court-martial, the Armed Services Subcommittee of the House of Representatives conducted an investigation into the alleged My Lai incident. During this investigation, numerous witnesses were called who

later appeared at the trial and testified for the prosecution against the Petitioner. The Subcommittee published its report in July, 1970, four months before Petitioner's trial began. The next day Petitioner filed a motion to discover this testimony. This motion was reiterated throughout the course of the courtmartial. (R. 984, 1015, 1346.) The military judge, realizing the relevancy and importance of the testimony, twice ordered the trial counsel to serve a subpoena duces tecum on Congress to obtain the testimony which was never released. (App. Ex. 203; R. 492-493; App. Ex. 490, 500, 501; R. 3348.) The military judge, in spite of his earlier determinations, denied the defense's motion to strike the testimony of these prosecution witnesses and denied the motion to discover the testimony on the basis that the defense had access to statements made by these witnesses in other investigations." Petitioner respectfully submits that the District Court was correct in ruling that the Court of Military Review did not apply proper constitutional standards in determining the question involved herein, and, therefore, did not fully and fairly consider the issue.20

B. THE BASIC GUARANTEE OF THE BILL OF RIGHTS

The Sixth Amendment right of the Petitioner to compulsory process and confrontation includes not only the right to see the witness against him but to cross-examine the witness as well. Dowell v. United States, 221 U.S. 325 (1911); States v. Brown, 132 N.W. 862, 864, 152 Iowa 427 (1911); People v. Waterson, 250 N.Y.S. 399 (1931); rev'd for other reasons 180 N.E. 330, 258 N.Y. 557 (1932); Smith v. State, 143 S.W. 2d, 190, 192, 200 Ark. 1152 (1940); State v. Crooker, 122 A. 845, 866, 23 ME. 310 (1923). One of the main functions of cross-examination is to impeach a witness by eliciting answers which impugn the witness's veracity, capacity to observe and recall and his impartiality. McCormick, Evidence, Sect. 22. This is most often done by use of inconsistent statements. McCormick, Evidence, Sect. 33-40; 3 Wigmore, Evidence, Sect. 1017-1046; 6 Jones, Evidence, Sect. 2398-2414. Therefore, part and parcel of the constitutional right of confrontation is the right to impeach the witnesses' testimony by a prior inconsistent statement. The denial of the right to crossexamine violates due process. Bruton v. United States, 391 U.S. 123 (1968). Where the testimony is "of a crucial, critical, highly significant nature, access thereto is required. Luna v. Beto, 5 Cir., 1968: 395 F. 2d 35, 41 (En Banc) (Brown, C. J. concurring); Warren v. Davis, 5 Cir., 1969, 412 F. 2d 746, 747; Jackson v. Wainwright, 5 Cir. 1968, 390 F. 2d 288. Furthermore, denial of access to possibly exculpatory evidence is violative of due process and the right of confrontation." Brady v. Maryland, 373, U.S. 83 (1963); Meers v. Wilkins, 2 Cir., 1964, 326 F. 2d 135; United States v. Bryant, D.C. Cir., 1971, 439 F. 2d 642.

C. THE GENERAL LEGISLATIVE PRIVILEGE OF CONFIDENTIALITY CLAIMED HEREIN MUST GIVES WAY ΤΟ THE PARTICULAR GUARANTEES OF THE INDIVIDUAL FREEDOMS GUARANTEED IN THE BILL OF RIGHTS

The issue concerned here is one of first impression. The House of Representatives Subcommittee refused to honor the subpoenas duces tecum twice issued by the military judge under the claim of the generalized privilege of confidentiality. As recognized by the District Court: "There can be little question that there is a privilege resting with the House of Representatives to protect its legislative processes." Calley v. Callaway, et al, supra. (Tr. Vol. I, p. 507) While the power of Congress to investigate for legislative purposes exists, it is not without limitations. Watkins v. United States, 354 U.S. 178 (1957). The power to investigate, as recognized by the District Court, has always been

23 The basis of the motion was the Jencks Act, 18 U.S.C. Section 3500, the Sixth Amendment's rights of compulsory process and confrontation, and due process of law under Brody v. Maryland, 375 U.S. 83 (1963).

As will be shown later. the defense did not have access to any statements made by Secretary Resor or General William C. Westmoreland.

The Court of Military Appeals denied review of the issue.

31 The refusal of the Subcommittee to release the testimony of Secretary Resor and General Westmoreland deprived the Petitioner of information elicited from witnesses he sought to obtain for his defense. See IV, infra.

The Subcommittee simply ignored the subpoenas determining that 18 U.S.C. & 3500 and Brady v. Maryland were inapplicable. The matter was never presented to the House as a whole.