Packwood v. Senate Select Committee on Ethics

Applicant Senator Bob Packwood requests that I grant a stay pending appeal to the Court of Appeals for the District of Columbia Circuit of a decision by the District Court enforcing the subpoena duces tecum issued by respondent Senate Select Committee on Ethics. The Court of Appeals recently, and unanimously, denied his emergency motion for a stay pending appeal.

The criteria for deciding whether to grant a stay are well established. An applicant must demonstrate: (1) a reasonable probability that four Justices would vote to grant certiorari; (2) a significant possibility that the Court would reverse the judgment below; and (3) a likelihood of irreparable harm, assuming the correctness of the applicant’s position, if the judgment is not stayed. Barnes v. E-Systems, Inc. Group

Applicant raises three challenges to the enforcement of the subpoena. First, he contends that the subpoena is impermissibly broad and seeks information beyond the defined subject matter of the pending Committee investigation. In applicant’s view, the subpoena should have been limited to those documents pertaining to the Committee’s initial inquiry into allegations regarding sexual misconduct; as it stands now, the subpoena, according to applicant, is tantamount to a general warrant. See Stanford v. Texas, 379 U. S. 476 , 480 (1965) (holding that general warrants are clearly forbidden by the Fourth Amendment).

As we stated in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 , 209 (1946), determining whether a subpoena is overly broad “cannot be reduced to formula; for relevancy and adequacy or excess in the breadth of the subpoena are matters variable in relation to the nature, purposes and scope of the inquiry.” Because resolution of applicant’s claim would entail a factbound determination of the nature and scope of respondent’s investigation, I do not think his claim raises an issue on which four Members of the Court

Applicant next asserts that the subpoena violates his Fourth Amendment right to privacy. The District Court, relying on our decisions in O’Connor v. Ortega, 480 U. S. 709 (1987), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977), balanced applicant’s privacy interests against the importance of the governmental interests. The court concluded that the latter outweighed the former. Applicant does not quarrel with the legal standard applied by the District Court, only with its conclusion. Because this claim thus also involves only a factbound determination, I do not think certiorari would be granted to review it.

Finally, applicant argues that the subpoena violates his Fifth Amendment protection against self-incrimination. He relies primarily on Boyd v. United States, 116 U. S. 616 (1886), and argues that the Courts of Appeals are in conflict as to whether Boyd remains controlling with regard to the production of private papers. We recently denied a petition for certiorari raising this precise issue. See Doe v. United States, ante, p. 1091. Our recent denial demonstrates quite clearly the unlikelihood that four Justices would vote to grant review on this issue. See South Park Independent School Dist. v. United States, 453 U. S. 1301 , 1304 (1981) (Powell, J., in chambers) (denying stay application because it

Accordingly, the request for a stay is denied.