Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and GRUBB, District Judge.
This is an appeal from an order granting summary judgment for the defendant and dismissal of the cause in an action for malicious defamation.
Defendant-appellee, Howard B. Gliedman, was appointed a Special Assistant to the Attorney General of the United States for the purpose of the prosecution of plaintiff-appellant, Ernest J. Sauber, former District Director of Internal Revenue in Chicago, Illinois, who, together with four other individuals, had been indicted on charges of conspiracy to defraud the United States of income taxes due and to commit certain other offenses, which charges grew out of certain pending criminal tax evasion cases. Under his letter of authority which was filed with the district clerk on March 6, 1957, Gliedman was assigned:
"* * * to assist in the trial of the case or cases growing out of the transactions hereinafter mentioned in which the Government is interested; and in that connection you are specifically directed to file informations and to conduct in the Northern District of Illinois and in any other judicial district * * * any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates which district attorneys are authorized by law to conduct."
The transactions referred to in this letter related to possible further irregularities in the Chicago office of the Internal Revenue Service.
Gliedman took his oath of office on March 6, 1957. On the following day he held a press conference in which he explained the reasons for his appointment as well as its purpose and scope. The following statements allegedly made during this press conference constitute the claimed malicious defamation:
"To conduct work preparatory to the Sauber trial to seek 'possible further corruption.'
"'When you have a man who was district director indicted for conspiracy to defraud the U.S. government of money, it doesn't take a genius to see something is wrong.'
"'This is not a witch hunt, and it should be good for employee morale, because an awful cloud has been hanging over the Chicago office.'
"'If nothing is there, we won't put it there.'"
The second claim of the complaint alleging that the defendant requested and procured two newspapers to publish false and defamatory matter concerning Sauber was dismissed by the district court and is not in issue here.
Gliedman filed a first motion for summary judgment on the ground of absolute privilege, which motion was supported by an affidavit of Warren Olney III, Assistant Attorney General of the United States, and which states in part as follows:
"Howard B. Gliedman is in charge of the prosecution of the case of United States v. Harold E. Sullivan, Byron A. Cain, Leon J. Busby, Ernest J. Sauber, and Ralph R. Johnson, as well as in charge of the investigation of alleged irregularities in ...