BURGER, C.J., Concurring and Dissenting Opinion

SUPREME COURT OF THE UNITED STATES

412 U.S. 306

Doe v. McMillan

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part.

I cannot accept the proposition that the judiciary has power to carry on a continuing surveillance of what Congress may and may not publish by way of reports on inquiry into subjects plainly within the legislative powers conferred on Congress by the Constitution. The inquiries conducted by Congress here were within its broad legislative authority and the specific powers conferred by Art. I, § 8, cl. 17.

It seems extraordinary to me that we grant to the staff aides of Members of the Senate and the House an immunity that the Court today denies to a very senior functionary, the Public Printer. Historically and functionally, the Public Printer is simply the extended arm of the Congress itself, charged by law with executing congressional commands.

Very recently, in United States v. Brewster, 408 U.S. 501, 516 (1972), we explicitly took note of the "conscious choice" made by the authors of the Constitution to give broad privileges and protection to Members of Congress for acts within the scope of their legislative function. As JUSTICES BLACKMUN and REHNQUIST have demonstrated so well, the acts here complained of were not outside the traditional legislative function of Congress. I join fully in the concurring and dissenting opinion of [p332] MR. JUSTICE BLACKMUN, post this page, and that of MR. JUSTICE REHNQUIST, post, p. 338.