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Court Rejects Tobacco Co. Bid for Documents Given to Congressmen

August 15, 1995

WASHINGTON (AP) _ A federal appeals court today refused to order two congressmen to turn over internal documents of Brown & Williamson Tobacco Co. received from a whistleblower.

Reps. Henry Waxman, D-Calif., and Ron Wyden, D-Ore., are constitutionally protected from having to provide the documents to the cigarette maker, said the U.S. Court of Appeals for the District of Columbia Circuit.

Brown & Williamson seeks the documents for use in its lawsuit against a former employee of a law firm that represented the company.

The internal documents indicate that top Brown & Williamson executives knew smoking was addictive and dangerous 30 years ago but hid their evidence and muzzled attempts to develop a safer cigarette.

U.S. District Judge Harold H. Greene had thrown out the subpoena in June 1994, saying the cigarette maker was attempting ``to intimidate, and in a sense to punish″ Waxman, Wyden and the person who provided the documents.

The three-judge appeals panel pointedly distanced itself from Greene’s comment and said it did not intend to take sides on the smoking issue.

But Laurence Silberman wrote for the three that Waxman and Wyden are protected by a clause of the Constitution that shields members of Congress from being questioned about any ``speech or debate″ in the House or Senate.

``The privilege is not designed to protect the reputations of congressmen but rather the functioning of Congress,″ Silberman wrote. The Constitution aims to protect members of Congress from interference with their legislative activities, he said.

The apparent fact that the documents were stolen is irrelevant to the case, Silberman said. And, he said, the cigarette company did not show how viewing and copying the documents would aid its lawsuit.

``B&W’s claim at bottom, is to a right to engage in a broad scale discovery of documents in a congressional file that comes from third parties. The speech or debate clause bars that claim,″ Silberman said.

Last month, Waxman unveiled new secret research documents that showed another cigarette maker, Philip Morris, tracked hyperactive third-graders as future smokers and gave electric shocks to college students to see if it would make them smoke more.

In an effort to avoid a new subpoena, Waxman unveiled the documents on the House floor and refused to release them publicly, instead submitting them for publication in the Congressional Record.

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