Kristoffer Sperry
Con. Law 5211
Memoranda #1
10/26/2007
Cox v. Bono and Cox v. Grisham
While under scrutiny for an illegal sexual relationship with President Selleck, the
investigation resulted in the petitioner being accused of misusing political campaign
contributions, favoritism in awarding of government contracts to her campaign contributors,
misuse of government funds, and engaging in a sexual relationship outside of the bonds of
matrimony. Shortly thereafter a Congressional committee was formed to 1) investigate illegal
campaign contributions and 2) propose campaign finance reform. In heading the investigation,
Rep. Emeril Cook, expanded his investigation beyond the simple question of improper use of
campaign contributions and the favoritism towards campaign contributions, and turned his
attention to the charges of misuse of government funds. He subsequently subpoenaed a group of
the petitioner’s employees to testify before the committee regarding the matter. The petitioner
has challenged the committee’s authority to subpoena the employees and their requirement to
testify.
Furthermore, evidence of a sexual relationship emerged between the petitioner and the
President of the United States. Previously, while under oath before a congressional council, the
petitioner denied having had such relations with the President. As a result, she has now been
charged with perjury by the U.S. Attorney for the District of Columbia, John Grisham; and the
House Committee on Ethics has recommended that she be censured, involving the lose of her
seniority, and forfeit half of her office budget for the rest of her term. The petitioner has filed
legal challenges to the congressional movement for censure, in particular the loss of her office
budget, and to enjoin the U.S. Attorney from prosecuting her for perjury.
The question at hand in Cox v. Bono is a review of “the conflicting constitutional claims
of congressional power and of an individual’s right to resist its exercise” under the First
Amendment, Barenblatt v. United States, [360 U.S. 109 S.CT. 1081 (1959)]. Cox has
challenged the authority of the committee to subpoena her employee’s employment records and
to compel their testimony. Regarding Cox v. Grisham, the question is whether the Constitution
allows for the House Committee on Ethics to issue censure; and if U.S. Attorney Grisham may
constitutionally proceed with his prosecution of perjury.
Congressional committee power has remained a controversial subject regarding the
constitutionality of congressional subpoenas. “Broad as it is, [this] power is not, however,
without limitations,” Barenblatt (O’Brien, 499). The power of Congress to subpoena the
petitioner’s employee’s records and compel them to testify is a “compulsory process” and
unconstitutional as it is a breech of their specific authority.
Primarily, there is no dispute as to the constitutionality of congress’ power to investigate;
Watkins v. U.S., [354 U.S. 178, 77 S. CT. 1173 (1957) clearly establishes that “the power of
Congress to conduct investigations is inherent in the legislative process” (O’Brien, 491).
However, the courts narrowed this power by ensuring “fundamental fairness” under the Due
Process clause of the Fifth Amendment, Watkins. The courts ruled that this clause “demands [no]
witness be compelled to determine whether a question is pertinent to a legitimate legislative
purpose” (O’Brien, 496). In our present case there has been no suggestion of a Fifth Amendment
violation, however, this decision applies under the court’s ruling of “pertinency,” saying “there is
no congressional power to expose for the sake of exposure” (O’Brien, 493). Congressional
committees must clearly outline their intent and stay within those boundaries set by their charter,
any breech of this charter would results in a “compulsory process,” giving “rise to a need to
protect the rights of individuals against illegal encroachment,” Watkins (O’Brien, 496).
It is obvious that House Speaker Bono formed this committee with clear intent to
investigate illegal campaign contributions and to propose campaign finance reform. Rep. Cook
has demonstrated a breech of authority by expanding his investigation to the inquiry of the
misuse of government funds—clearly “compulsory.” Therefore, a subpoena of the petitioner’s
employee’s records and testimonies does not suffice the requirement of “legitimate legislative
purpose” and is a breech of authority by this specific committee. The petitioner’s request is
granted, a subpoena of her employee’s records and their testimonies are denied by the above
committee.
Furthermore, this committee’s authority may not be broadened under the ruling of
Barenblatt. That Court held First Amendment rights are not absolute; they must be carefully
balanced against the threat of national security (O’Brien, 503). It is clear that no issue of
national security arises from the prosecution of Senator Cox or the subpoena of her employee’s
records. Regarding the constitutional contentions of Barenblatt, their ruling can have no weight
on this courts decision. Therefore, in contrast to Barenblatt, the balance between individual and
governmental interests here at stake must be struck in favor of the prior, and therefore the
provision of the First Amendment would be offended.
Regarding the first question of Cox v. Grisham; the proposal of the House Committee on
Ethics to issue censure is wholly constitutional, based on Article I § 5 of the Constitution. The
Constitution clearly states “each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member”
(O’Brien, 3). The petitioner must be held accountable, by her fellow associates in Congress, for
any actions that may result in the loss of integrity of her position. It is this courts belief that any
violation of the District of Columbia, and thus a federal crime, qualifies as “disorderly
Behaviour” and may be subject to congressional review. This court is obligated to uphold the
Constitution as being the supreme law of the land, Marbury v. Madison, [I CR. (5 U.S.) 137
(1803)] and sustain the issue of censure by the House Committee on Ethics and all punishments
that may there in reside (O’Brien, 55).
Regarding the second question; whether the constitution allows U.S. Attorney Grisham to
proceed with his prosecution of perjury; Attorney Grisham, under federal jurisdiction of the
District of Colombia, may not be prohibited in his prosecution of the petitioner. Article I § 6 of
the Constitution does not guarantee any member of Congress immunity from federal charges.
Precedent has been formed in both Nixon v. Fitzgerald, [418 U.S. 683, 94 S.CT. 3090 (1974)]
and Clinton v. Jones, [520 U.S. 681, 117 S. CT. 1636 (1997)] stating the President may
experience a special degree of immunity from civil damage actions arising out of the execution
of official duties of office (O’Brien, 446). The distinction in this case is obvious; 1) a member of
Congress is under investigation, not the President, and 2) the petitioner was in violation of a
federal crime, not a civil dispute. This is brought up only to correlate a possibility of immunity
for a member of Congress under similar suit. However, this case in no way fulfills any
qualification of immunity under either of the above cases.
Because the petitioner voluntarily gave false testimony—which resulted in the
obstruction of justice—regarding a federal crime of fornication, under the District of Columbia;
this court grants Attorney Grisham jurisdiction to proceed with the prosecution of the petitioner
in regards to perjury and other violations of federal law.