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decided: February 24, 1966.



Warren, Fortas, Harlan, Brennan, Stewart, Clark, Douglas; Black took to part in the consideration or decision of this case.

Author: Harlan

[ 383 U.S. Page 170]

 MR. JUSTICE HARLAN delivered the opinion of the Court.

Respondent Johnson, a former United States Congressman, was indicted and convicted on seven counts of violating the federal conflict of interest statute, 18 U. S. C. § 281 (1964 ed.),*fn1 and on one count of conspiring to

[ 383 U.S. Page 171]

     defraud the United States, 18 U. S. C. § 371 (1964 ed.).*fn2 The Court of Appeals for the Fourth Circuit set aside the conviction on the conspiracy count, 337 F.2d 180, holding that the Government's allegation that Johnson had conspired to make a speech for compensation on the floor of the House of Representatives was barred by Art. I, § 6, of the Federal Constitution which provides that "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." The Court of Appeals ordered a new trial on the other counts, having found that the evidence adduced under the unconstitutional aspects of the conspiracy count had infected the entire prosecution.

The conspiracy of which Johnson and his three co-defendants were found guilty consisted, in broad outline, of an agreement among Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin and William L. Robinson who were connected with a Maryland savings and loan institution, whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges. It was further claimed that as a part of this general scheme Johnson read a speech favorable to independent savings

[ 383 U.S. Page 172]

     and loan associations in the House, and that the company distributed copies to allay apprehensions of potential depositors. The two Congressmen approached the Attorney General and the Assistant Attorney General in charge of the Criminal Division and urged them "to review" the indictment. For these services Johnson received substantial sums in the form of a "campaign contribution" and "legal fees." The Government contended, and presumably the jury found, that these payments were never disclosed to the Department of Justice, and that the payments were not bona fide campaign contributions or legal fees, but were made simply to "buy" the Congressman.

The bulk of the evidence submitted as to Johnson dealt with his financial transactions with the other conspirators, and with his activities in the Department of Justice. As to these aspects of the substantive counts and the conspiracy count, no substantial question is before us. 18 U. S. C. § 371 has long been held to encompass not only conspiracies that might involve loss of government funds, but also "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government." Haas v. Henkel, 216 U.S. 462, 479. No argument is made, nor do we think that it could be successfully contended, that the Speech or Debate Clause reaches conduct, such as was involved in the attempt to influence the Department of Justice, that is in no wise related to the due functioning of the legislative process. It is the application of this broad conspiracy statute to an improperly motivated speech that raises the constitutional problem with which we deal.*fn3

[ 383 U.S. Page 173]


The language of the Speech or Debate Clause clearly proscribes at least some of the evidence taken during trial. Extensive questioning went on concerning how much of the speech was written by Johnson himself, how much by his administrative assistant, and how much by outsiders representing the loan company.*fn4 The government attorney asked Johnson specifically about certain

[ 383 U.S. Page 174]

     sentences in the speech, the reasons for their inclusion and his personal knowledge of the factual material supporting those statements.*fn5 In closing argument the

[ 383 U.S. Page 175]

     theory of the prosecution was very clearly dependent upon the wording of the speech.*fn6 In addition to questioning the manner of preparation and the precise ingredients

[ 383 U.S. Page 176]

     of the speech, the Government inquired into the motives for giving it.*fn7

The constitutional infirmity infecting this prosecution is not merely a matter of the introduction of inadmissible evidence. The attention given to the speech's substance and motivation was not an incidental part of ...

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