Court Hears Appeals On Grand Jury

The First Circuit Court of Appeals recessed yesterday afternoon after hearing final arguments on two separate motions dealing with the federal grand jury investigation of the leak of the Pentagon Papers.

The three-judge court heard arguments from attorneys for Senator Mike Gravel (D-Alaska) which alleged that the grand jury may violate his legislative immunity. Attorneys for Idella Marx, step-mother of Patricia Marx Ellsberg, wife of Daniel Ellsberg '52, argued in a separate motion that the court must decide whether the government conducted illegal wiretapping before she will testify before the grand jury.

The Circuit Court clerk said yesterday that a decision can be expected in a week at the earliest. The grand jury investigation has been suspended since October 29 pending a ruling on the appeal motions.

In another development yesterday, government attorneys said that time has run out on Federal judge W. Arthur Garrity's order that the government state whether or not they have wiretapped Noam Chomsky and Richard Falk. Garrity ordered the government to avow or disavow wiretapping before it could subpoena the two men.

New Subpoenas

The attorneys said they may resubpoena Chomsky and Falk, but they added that, if sought, new subpoenas would contain answers to Garrity's order on the wiretapping question.

Gravel's motion arises from a grand jury subpoena served on Leonard S. Rodberg, a physicist at the Institute for Policy Studies whom Gravel hired as an administrative aide to help publish his edition of the Pentagon study.

Rodberg asked Garrity to quash the subpoena last month on the grounds that it violated Gravel's legislative immunity, Garrity ruled that Rodberg could refuse to discuss actual Congressional business but that he must still testify. Gravel and Rodberg then appealed to the circuit court.

Gravel's attorney argued yesterday that Garrity's ruling provides no prior determination of either the scope of the government's inquiry or the legitimacy of its questioning. They maintained that Garrity had not established a safeguard to prevent the grand jury from becoming "an oppressive instrument" that would "conduct a total fishing expedition into the activities of the legislative branch."

The attorneys added that the government's moves show that "the executive branch of the Federal Government is trying to intimidate the legislative branch."

They asked the court to quash Rodberg's subpoena and to provide in the future both a statement of "the purpose and scope of the government's inquiry" and "a list of witnesses in advance" so that the defense can determine which witnesses can claim legislative privilege.

Government attorneys requested the court to uphold Garrity's ruling and called Gravel's motion "a nightmare of judicial procedure." They charged that the defense is "stalling with the intention of halting the grand jury's investigation."

Government attorneys also denied Gravel's allegation that the grand jury is attempting to intimidate the legislative branch. "We do not intend to call Senator Gravel before the jury nor have we contemplated prosecuting him," they said.

The court then heard arguments on the Idella Marx appeal. Marx was convicted of contempt in the lower court after she refused, under subpoena, to answer grand jury questions even after she was granted immunity from prosecution.

Her attorney, Victor Rabinowitz, told the court that Marx suspected illegal wiretapping had been used by the government to secure evidence that would lead to questions she would be asked by the grand jury.

"My client is calling the possibility of illegal wiretapping to the attention of the court," Rabinowitz said yesterday. "The court should not compel her to assist in the commission of a crime."

Rabinowitz said that his client had "strong suspicions" of government wiretapping because of her close relationship with Daniel Ellsberg, "a man who is at the center of a controversy that is of national security importance."

He charged the government with "equivocating" on whether or not it has tapped Marx, and called for a more definite statement from the government" that would satisfy the court that no illegal act has been committed.

Government attorneys denied that "any overhearing of Idella Marx or of any other individual to assist in the preparation of questions to Idella Marx" has been employed by the government.

They added that "investigating our records to determine whether a person has been under any form of government surveillance is a time-consuming process, and we hope the court will not compel us to do this with future witnesses in the grand jury proceedings.