United States v. Helstoski

PETITIONER:United States
RESPONDENT:Helstoski
LOCATION:Southeastern Community College

DOCKET NO.: 78-349
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 442 US 477 (1979)
ARGUED: Mar 27, 1979
DECIDED: Jun 18, 1979

ADVOCATES:
Morton Stavis – for respondent
Stanley M.Brand
Wade H. McCree, Jr. –

Facts of the case

Question

Audio Transcription for Oral Argument – March 27, 1979 in United States v. Helstoski

Warren E. Burger:

We’ll hear arguments first this morning in Number 349, United States against Helstoski and the consolidated case.

Mr. Stavis, you may proceed whenever you’re ready.

Morton Stavis:

Mr. Chief Justice and may it please the Court.

There are two cases here and the 546, our petition, Number 349 of the Solicitor General’s petition, the facts in both cases are quite simple.

546 which I will deal with first involve the jurisdiction of the District Court to try this indictment.

And the facts there obviously the indictment itself which charges a member of Congress with taking money and conspiring to take money by introducing bills in Congress, bills which the indictment charges were in fact introduced, and the bills as specifically identified in the indictment.

It is plain from the face of the indictment that the grand jury which found it heard, considered and relied upon proof of the performance of legislative acts.

And while it is not clear from the face of the indictment, it is established in the opinion of Judge Meanor and undisputed that’s the indicting grand jury, as the grand jury which handed down this indictment received proofs of the performance of legislative act from the United States attorney not from Mr. Helstoski.

It is also clear and undisputed that while Mr. Helstoski gave legislative materials to earlier grand juries, not the indicting grand jury, he had no reason to believe at the time that he gave such materials that he was the target of the grand jury, and in fact somebody else was thereafter indicted, tried and convicted.

Byron R. White:

Of course it wouldn’t make any difference for your theory if he had, would it?

Morton Stavis:

If he was a target?

Byron R. White:

If he was aware that he was a —

Potter Stewart:

I knew he was.

Morton Stavis:

It — to our fundamental theory, it doesn’t.

Potter Stewart:

Might have something to do with the waiver.

Morton Stavis:

I don’t think it has anything to do with waiver either, but I agree that if our theory is correct that this is a jurisdictional allocation then it wouldn’t make any difference at all.

Warren E. Burger:

Who was the other person under inquiry, another member of Congress?

Morton Stavis:

No, no somebody who had been employed by the Congressmen some eight years previously, was not then employed and hadn’t been employed for many, many years.

Now, our position in 546 is, and you put your finger right on it, that the Court had no jurisdiction to try this indictment.

And if the Court agrees with us and that of course, it doesn’t have to reach the evidentiary issues which were involved in 349.

Now, I’m not going to attempt to match the eloquence of this Court and its eight opinions dealing with the Speech and the Debate Clause and review or recant the history of that clause in its meaning in England and in United States.

William H. Rehnquist:

Mr. Stavis, are you going to get it all to the appealability of Judge Meanor’s order by the Government?

I noticed that you attacked it in the Third Circuit but neither party apparently contest it here.

It would seem to me that it is not open and shut that that was an appealable order.

Morton Stavis:

Well, I — we — in the Third Circuit, we certainly didn’t believe that it was an appealable order.

We moved to dismiss before the Third Circuit on those grounds.

The Third Circuit denied our motion.

I must confess that we did not cross-petition on that particular issue, but it may very well be appropriate for the Court to address that question on its own motion because —

William H. Rehnquist:

Well, we have jurisdiction of the Court of Appeals opinion — judgment only if it was properly in the Court of Appeals.

Morton Stavis:

I don’t think this matter is properly in the Court of Appeals.

Morton Stavis:

Candidly, I don’t think the issue which the Government presented in its petition or even properly before this Court, because the entire factual foundation for the Government’s petition in 349 is a series of proposed profers of proof which they asked the District Court to rule upon three times.

And the District Court refused to do so.

So there are no facts before this Court.

And 349 is a wholly and an entirely supposititious case.

And in that respect, I guess I don’t have to call to your attention, the attention of the Court, the dissenting opinion by Mr. Justice Blackmun concurred in by the Chief Justice only last week in the (Inaudible) case, which you addressed the question of the proposition that this Court ought — to be handling supposititious cases.

You get enough business handling concrete issues, and while the other seven members of the Court didn’t agree that that principle applied to that case.

There’s no question that this Court ordinarily tries and adjudicates only concrete cases.

William J. Brennan, Jr.:

Well that I get — that’s a case in controversy argument, but did I understand Mr. Stavis, you’re suggesting that even though you did not cross-petition on the question of the appealability of the order to the Third Circuit that it’s jurisdictional and therefore that we can reach and decide it?

Morton Stavis:

I accepted the suggestion of Mr. Justice Rehnquist in that respect.

William J. Brennan, Jr.:

I just want to be clear, that’s — now the arguments you’re now making is really a case of controversy, are you (Voice Overlap)?

Morton Stavis:

That’s correct.

William J. Brennan, Jr.:

And that’s a separate argument is it?

Morton Stavis:

That’s correct Your Honor.

William J. Brennan, Jr.:

All right.

Morton Stavis:

May I get back to the issues in 546 which is the jurisdiction of this Court to try — of the District Court of an Article III Court to try this indictment.

That the Speech or Debate Clause establishes jurisdictional allocation comes all through the decisions of this Court including its latest, and there of course is the Chief Justice’s opinion in Eastland against Servicemen’s Union.

Warren E. Burger:

For the Court?

Morton Stavis:

I’m sorry.

Warren E. Burger:

Opinion for the Court?

Morton Stavis:

Of course, the opinion for the Court.

And what you addressed there was the fact that the Speech or Debate Clause affects the availability of judicial power.

Now, the corollary to approaching this matter from the point of view of jurisdiction or the availability of judicial power is that no one says that members of Congress are super citizens and Speech or Debate Clause isn’t free license to take bribes and commit crimes and introduce bills that are paid for.

That the only question is, which is the proper courthouse?

Is it an Article III Court or is it the Congress of the United States under both the Speech or Debate Clause and the Punishment Clause and so that there is no question about it.

My client never has, does not now nor will he contest the jurisdiction of the Congress of the United States to try the charges which we’re involved with here.

Because not exactly looking to be charged by any —

Warren E. Burger:

Can they try these charges now?

Morton Stavis:

I believe so.

Warren E. Burger:

And what sanction could Congress impose?

Morton Stavis:

By way of Kilbourn against Thompson that Congress has complete power to impose any sanctions it chooses including — if I read Kilbourn against Thompson correctly, imprisonment.

Morton Stavis:

That’s what you said in Kilbourn.

Potter Stewart:

I suppose under the constitution that wouldn’t be authorized to impose a cruel or unusual punishment, would it not?

Morton Stavis:

Oh, I think there are constitutional limitations upon the exercise of its power.

That’s Powell against McCormack.

We expect that if we act right on this by Congress, we expect to insist upon the due process hearing.

And the whole panoply of rights, that would be applied to any judicial hearing and that would be a judicial hearing.

It’s just an exception to Article III jurisdiction, but —

Potter Stewart:

You going to insist on a jury trial?

Morton Stavis:

No.

No we don’t expect to, a jury trial.

Potter Stewart:

Although the constitution guarantees that, isn’t it?

Morton Stavis:

Guarantees it, an Article III trial.

I do not believe that it would be —

Potter Stewart:

I didn’t say anything about an Article III trial, does it?

Morton Stavis:

Well, I would guess however that we would accept the fact that would not be a jury trial.

If we would — if we were entitled a jury trial, we would waive it.

I think the essence of the Punishment Clause is that the Congress itself has that power.

Potter Stewart:

Subject to what constitutional limitations?

Morton Stavis:

Subject to due process limitations.

Potter Stewart:

But not a jury trial?

Morton Stavis:

That’s correct, subject to cruel and unusual punishment limitation.

Potter Stewart:

Presumption of innocence?

Morton Stavis:

Presumption of innocence.

Potter Stewart:

Necessity of proof beyond a reasonable doubt?

Morton Stavis:

I believe so, right of confrontation, right of cross-examination, right of counsel or —

Potter Stewart:

Mr. Stavis, is it clear that their clause applies to a former congressman?

Morton Stavis:

Congress in the past has so asserted, we do not dispute that and besides as of the time that this indictment was found as to Helstoski was a member of Congress.

Potter Stewart:

Yes but he’s not now, any punishment by a Congressman — by Congress would be from now on.

Morton Stavis:

That is correct and we do not dispute the jurisdiction of Congress but the point that I’m making is —

Potter Stewart:

Well, you do it here because you don’t have to.

Morton Stavis:

That is correct, and all — all we have to dispute here is the jurisdiction of the Article III Court.

Potter Stewart:

And Courts don’t have any jurisdiction.

Morton Stavis:

And at the time this indictment was found, Congress clearly had jurisdiction.

Thurgood Marshall:

What would it — does it — is there a statute of limitations on this?

Morton Stavis:

I don’t know that there is any.

William J. Brennan, Jr.:

Well Mr. Stavis, what took — you said Congress has asserted authority to try after his defeat which I gather is what happened to this congressman.

Morton Stavis:

That’s correct.

In —

William J. Brennan, Jr.:

Has that ever happened?

Morton Stavis:

Yes it has.

William J. Brennan, Jr.:

Against whom?

Morton Stavis:

Well, Mr. Brand speaking for the speaker —

William J. Brennan, Jr.:

Oh, I see —

Morton Stavis:

— will address that particular question.Historically, it has occurred.

I think in fact it occurred in the most famous corruption investigation by the Congress in the Crédit Mobilier transaction where Congressman Oakes Ames was charged, tried and convicted but it has — after he was no longer sitting.

And I think there are a number of other examples of that sort.

William H. Rehnquist:

Mr. Stavis, would the net result of accepting your theory mean that Congress could not enact and the President sign a law making it a criminal offense for a Congressman to take a bribe?

Morton Stavis:

Congress has enacted such a law, and such a law is on — to that books and has been enforced and is valid, but not in respect to the performance of legislative acts.

In other words, the Johnson case which wasn’t in fact tried under that section is a perfect example.

A Congressman takes a bribe to try to influence the Department of Justice, the normal conflict of interest situation or to take in bribe for an act which is not a legislative act in nature.

What the Speech or Debate Clause is driving at is that if you want to try a legislative act for the connection with legislative act if you want to try the legislative process that belongs in the Congress.

If you want to try just the question of bribery, not implicating the legislative process that you may do in an Article III Court.

Warren E. Burger:

But when — Mr. Stavis, when the charge is for taking money in exchange for a promise of a future act, hasn’t the Court held that it’s not necessary to show the legislative act or the legislative activity?

Morton Stavis:

And of course that’s your opinion in the Brewster case.

That’s exactly what the Court held.

And the whole point of the Government’s taking this case is that they want to get around that decision, because in that decision, you said at least eight times, we counted them, that under the Brewster indictment you could not show the actual performance of a legislative act.

Warren E. Burger:

Well, how will we know whether the Government is going to try to prove that until the case is tried?

Morton Stavis:

Well, that’s what we thought accepting that the Government and that’s why we don’t think you would even consider this case but the Government says, “Please look at our profers of proof, this is really what we want to prove.”

We say, “Those people aren’t going to testify that way let alone the fact that if they did testify it wouldn’t be true.”

Where the Government is asking you to make — asking the District Court and asking you to make rulings on advanced evidentiary proof.

Thurgood Marshall:

I understand you say you didn’t want us to hear this case?

Morton Stavis:

We want you to hear the Government’s petition.

Thurgood Marshall:

Oh, I see.

Morton Stavis:

We want you to hear the Government’s petition as —

Thurgood Marshall:

I see, I see.

Morton Stavis:

Sure, I want you to hear my petition.

Thurgood Marshall:

I see.

Morton Stavis:

Because my petition —

Thurgood Marshall:

I just marvel at your fairness.

Morton Stavis:

Well, I don’t think it’s not — I think its not any fair but correct.

But let me get back Mr. Chief Justice to your question, because you said that in Brewster and you looked at an indictment that did not charge the performance of legislative acts.

Look at this indictment, on its face it charges the specific performance of designated and named legislative acts.

Now if this case goes to trial, and if you prove — if the Government is permitted to prove the facts as alleged in this indictment, I’m talking about what would’ve happened if they came up with a Brewster indictment, but if they proved the facts alleged in this indictment that jury is going to be asked to decide questions as to the functioning of the legislative process specifically.

Warren E. Burger:

What if the trial court excludes any evidence about the legislative acts?

Morton Stavis:

Well that’s what Mr.– that’s what Judge Meanor said he was going to do and that’s why the Government took this case up.

They weren’t unsatisfied with Judge Meanor’s decision which said, “I read the Brewster opinion and I intend to enforce it and not permit the introduction of legislative acts.”

The Government took it up that’s why this case have been going on now for over two and a half years without a trial.

Now, but I want to emphasize that our position is that in the light of this indictment, the issues just does not end with the fact that the Government would not be permitted to introduce that evidence at trial.

And that’s what my petition is about.

I say that the grand jury released and found an indictment which on its face is beyond the jurisdiction of this Court.

And what the Government is saying is, “Well, let’s fix up the indictment a little bit.”

Well, maybe they shouldn’t have charged and alleged these legislative acts which they designate in that indictment.

“Well, we’ll just strike it out.

Fix it up and make it like the Brewster type indictment and forget that it ever happened.”

John Paul Stevens:

Mr. Stavis, do you agree that if they strike the allegations of the specific overt acts describing legislative acts that the indictment would then be comparable to the indictment in the Brewster case?

Morton Stavis:

Before, the morals in this specific legislative act, it’s also the allegations in counts 2 (a) and 4 of the indictment which also include allegations of specific legislative acts.

Yes, the answer is if all those words were taken out then you’d have an indictment that read like the Brewster indictment.

But the trouble about doing that is that by the issuance of the indictment the executive branch of the government, the Executive Branch of the Government has implicated — Judge (Inaudible) and the grand jury has implicated and impugned the functioning of Congress.

Now the point that we make is that when the Speech or Debate Clause is set up to protect this delicate tripartite separation of powers, it means that the —

John Paul Stevens:

But Mr. Stavis, would you say then that if before the defendant is put in jeopardy, the def — the Government can come in and voluntarily dismiss the indictment, that permission to dismiss the indictment then reindict it leaving out all the references to legislative acts?

Morton Stavis:

No problem about that.

John Paul Stevens:

Well, if they still —

Morton Stavis:

The (Voice Overlap) —

John Paul Stevens:

— would’ve done what you just said.

Morton Stavis:

No, provided that now this is the difference, provided that it had not presented the legislative acts to the grand jury.

John Paul Stevens:

So that having presented the legislative acts to the grand jury that he have given him permanent immunity?

Morton Stavis:

No, they haven’t.

There’s nothing in the world that says that they can’t (Voice Overlap) the grand jury and present a case to another grand jury that’s exactly what happened in the Long case.

In the Long case decided by this Court —

John Paul Stevens:

Well your position then just so I get is that having told a particular grand jury about a legislative act by a Congressman, that grand jury may never return an indictment against that Congressman?

Morton Stavis:

Indictment which charges legislative acts.

John Paul Stevens:

Well, —

Morton Stavis:

I mean — of course they (Voice Overlap) —

John Paul Stevens:

I thought you said that in a moment ago if they dismissed the indictment and brought a new one would — didn’t make reference, its still be bad?

Morton Stavis:

Oh no!

No, what I mean is that they can’t — I mean obviously they can indict him for bank robbery, something having — they may be able to indict him for bank robbery having —

John Paul Stevens:

No, they just excised from the new indictment any reference to the legislative acts and they merely follow the pattern of the Brewster indictment.

Morton Stavis:

That would be invalid because the grand jury, the grand jury has violated the Speech or Debate Clause but this is not to say that the Government cannot convene another grand jury, present the case which does not involve proof of legislative acts and come out with the Brewster type indictment.

William H. Rehnquist:

Well but that’s like Calandra.

Once the information has been presented to the grand jury there’s nothing more that can be done to salvage the Speech or Debate Clause.

The question is whether the indictment it returns is constitutional or not.

The idea that if you present a different information to another grand jury, somehow you could call it back to — call the earlier proceedings back just isn’t possible.

Morton Stavis:

It is not like Calandra.

Calandra is a very different kind of a case.

In Calandra you decided that under the Fourth Amendment — the exclusionary clause which is your making that you would allow a grand jury to hear evidence unlawfully seized by somebody else.

William H. Rehnquist:

And we also said in Calandra that the right of privacy protected by the Fourth Amendment had already been breached and there was nothing that —

Morton Stavis:

I understand that.

But here you have an explicit provision of the speech — in the constitution which says that speech or debate, which I wish would mean legislative acts, shall not be questioned in any other place.

In Gravel you said that includes a grand jury.

Warren E. Burger:

Did it say he may not be questioned or he may not be required to answer?

Morton Stavis:

Says he may not be questioned.

William H. Rehnquist:

And, he may not —

Morton Stavis:

I think it says may not be questioned.

William H. Rehnquist:

No.

Now, did he have to respond to anything in the grand jury?

Morton Stavis:

I think he did at the point when he wasn’t the target.

I read — as I read Gravel –Well, a lot of non-targets, witnesses before a grand jury has claimed immunity from responding for various reasons, do they not?

Morton Stavis:

On the Fifth Amendment ground.

Warren E. Burger:

Yes, but there might be another reason here then, wouldn’t there?

Morton Stavis:

It might be but if I read the Gravel case accurately and I think I do, there is no speech or debate protection from questioning when the grand jury is investigating third party crime.

Thurgood Marshall:

Well Mr. Stavis, am I right that your client voluntarily gave the legislative count to the grand jury?

Morton Stavis:

Has laid it to them voluntarily and —

Thurgood Marshall:

So is that — do you take position that if a Congressman is up for anything and he voluntarily gives a legislative thing, he can’t be indicted from then on.

Morton Stavis:

–He must —

Thurgood Marshall:

— he is immunized forever?

Morton Stavis:

He wasn’t up for anything.

Thurgood Marshall:

Yes, but he voluntarily didn’t he, he did?

Morton Stavis:

He was subpoenaed to testify.

Thurgood Marshall:

Did he?

But didn’t he bring these bills there?

Morton Stavis:

He was subpoenaed to testify —

Thurgood Marshall:

And didn’t he bring the bills there?

Morton Stavis:

That is correct.

Thurgood Marshall:

Didn’t he bring the legislative matters there?

Morton Stavis:

That is correct.

Thurgood Marshall:

And now he complains about bringing them there?

Morton Stavis:

Because he believes —

Thurgood Marshall:

And now he complains about bringing them there?

Morton Stavis:

He doesn’t complain about bringing them there —

Thurgood Marshall:

Oh, what is he complaining about?

Morton Stavis:

— he thinks he was acquired to bring them there.

He doesn’t complain about that at all.

What he complains about is some grand jury that he never brought them before and which turned the wheel and targeted him.

Thurgood Marshall:

He would be immunized and we’re all going to bank in to the State of Alaska.

Morton Stavis:

Your Honor, I’ve said exactly the contrary.

Thurgood Marshall:

I’m not too sure you wouldn’t go so far to say he’d be immunized from robbing a bank in Great Britain.

Morton Stavis:

Your Honor I said exactly the contrary.

I say that quite the contrary, he is subject to prosecution in an Article III Court by a grand jury which doesn’t have this material.

He is subject to prosecution before Congress where this material may properly be the subject of inquiry by the Court which has jurisdiction.

So I do not accept the suggestion Your Honor because I think I’ve said exactly the contrary.

May I reserve some of my time —

Warren E. Burger:

Does it not sometimes happen, Mr. Stavis that the prosecution fails to prove all of what is alleged in an indictment and yet a conviction nevertheless results?

Morton Stavis:

Of course it — of course that happens but that those are not cases where you’re dealing with an expressed constitutional prescription —

Warren E. Burger:

Well now this trial judge has indicated that he will in advance have the advantage of his statement that he would not admit any testimony on that score —

Morton Stavis:

That he intends to comply with Brewster.

Warren E. Burger:

Well —

Morton Stavis:

— but I just — our position is that the indictment is already a violation of the Speech or Debate Clause.

William J. Brennan, Jr.:

And therefore he can never be tried under this indictment.

Morton Stavis:

Under this indictment.

William J. Brennan, Jr.:

And that what — this indictment has to be dismissed is your opinion?

Morton Stavis:

That’s correct.

William J. Brennan, Jr.:

And if he’s to be indicted, he has to be indicted by a new grand jury which does not hear the evidence that you say violates the Speech and Debate Clause.

Morton Stavis:

And that’s not any different than what you did in —

William J. Brennan, Jr.:

Well, but that is your position?

Morton Stavis:

That is correct, it’s precisely this position.

Thurgood Marshall:

What about the statute of limitation?

Morton Stavis:

I’m sorry?

Thurgood Marshall:

What about the statute of limitation?

Morton Stavis:

I think there’s an expressed provision of the statutes which provides that where an indictment is voided for some reason not having to do with the merits of the offense that the statute of limitations is told I think there’s an expressed provision in the United States Code.

Thurgood Marshall:

Well, (Voice Overlap) where it is?

Morton Stavis:

No, but I’ll be glad to furnish it to —

Thurgood Marshall:

If you give me an idea, I can find it, can you give me an idea.

Morton Stavis:

It’s in the United States Code.

Thurgood Marshall:

Good.

Morton Stavis:

But there’s an expressed provision — I’ll looked that up thinking about this case and I did look it up.

Thurgood Marshall:

In fact you can’t — didn’t remember it, makes me think it might not help you (Inaudible).

Morton Stavis:

Well, it doesn’t help me in the sense that in an indictment, a new indictment can be brought as I have suggested.In that sense it doesn’t help me, but also makes clear that the suggestion I’ve made as to the potentialities of a new indictment is entirely feasible.

And I just want to say in reference to Mr. Justice Brennan’s question, that of course is exactly what you do in an immunity case.

You forbid the use of immunized testimony.

You impose upon the prosecutor an obligation to establish that he didn’t use immunized testimony when he got the indictment.

If he can’t make it he can go to another grand jury.

He can go to another grand jury and get an indictment without the use of the immunized testimony, does that all the time.

William H. Rehnquist:

Is there any case from this Court saying that an indictment returned where that the Government didn’t show was not based on immunized testimony is invalid?

Morton Stavis:

I think Warren comes close to that.

In Warren what you said was —

William H. Rehnquist:

Well, I — could you ask — answer yes or no?

Morton Stavis:

I’m not sure I could put my fingers on a case at the moment.

May I reserve some time?

Warren E. Burger:

Very well —

John Paul Stevens:

May I ask you —

Warren E. Burger:

— Mr. Stavis.

John Paul Stevens:

— one question before you do.

You mentioned the jurisdictional for former members would be covered in your colleague’s argument, but as I look at his brief, he gives us some example of five former members over whom Congress say they did not have jurisdiction?

Maybe he will cover it, but I would like to be advised on that if it’s incorrect.

Morton Stavis:

I think he’s given an example of cases in which former members of Congress were covered.

John Paul Stevens:

You don’t happen to know such a case yourself?

Morton Stavis:

Other than the Oakes Ames case which I mentioned.

Warren E. Burger:

What was the bank in Grand City —

John Paul Stevens:

Could you give me that again, the —

Morton Stavis:

Oakes Ames, Congressman —

John Paul Stevens:

Congressman Ames?

Morton Stavis:

Congressman Ames involved in the Crédit Mobilier controversy around the 1870’s I think.

That was the biggest scandal case in Congress at the time.

Thank you very much.

Warren E. Burger:

Mr. Brand.

Stanley M.Brand:

Mr. Chief Justice, and may it please the Court.

I’m here representing the Honorable Thomas P.O’Neil, Speaker, the Honorable Frank Thompson, Chairman and the Honorable William Dickenson, ranking minority member Committee on House Administration of the U.S. House of Representatives as amici curiae.T

he interest of the speaker and his colleagues in this case is apparent.

It presents serious questions in our minds as to the continued viability of the Speech or Debate Clause.

At the outset, I would like to make one point clear.

The Congress has read Johnson and Brewster and that Congress accepts Johnson and Brewster.

When we saw the Solicitor’s petition however, and what we viewed as an attempt to relitigate Brewster, we were concerned, and that’s why we are here.

To paraphrase Thomas Jefferson’s characterization of the clause which he wrote shortly after the adoption of the constitution, “The clause is intended to protect the substance rather than the shadow of representative government, and for that reason it states for any speech or debate they shall not be questioned in any other place.”

We believe that this clause operates as an institutional protection as well as a personalized privilege.

And to affect this high principle of an unfettered legislative branch, the framers concluded that a jurisdictional allocation was necessary.

And we read this jurisdictional allocation from the Speech or Debate Clause read together with the Punishment Clause.

Like other jurisdictional requirements, the trial of legislative acts must occur in a proper forum.

It is not subject to waiver, Congressman Helstoski cannot waive himself into an Article III Court for the trial of legislative acts.

William J. Brennan, Jr.:

That is even if he had voluntarily submitted all this material —

Stanley M.Brand:

That’s right.

William J. Brennan, Jr.:

— regarding his legislative act.

Stanley M.Brand:

That’s our position.

William J. Brennan, Jr.:

And even that —

Potter Stewart:

Even if he admit an unequivocal explicit waiver, knowing waiver voluntarily?

William J. Brennan, Jr.:

Yes, any more than two —

Potter Stewart:

He was just —

William J. Brennan, Jr.:

— any more than two litigants —

Potter Stewart:

— not empowered to waive.

Stanley M.Brand:

— any more than two litigants could present themselves to an Article III Court —

Potter Stewart:

And (Voice Overlap) —

Stanley M.Brand:

— without a case of controversy and say, “We would like the Court nevertheless to try this case.”

Warren E. Burger:

In other words, the Speech or Debate Clause doesn’t belong to an individual, it belongs to an institution, is that your point?

Stanley M.Brand:

Yes.

Thurgood Marshall:

Well couldn’t —

Byron R. White:

Well if it does, why can’t that institution provide for its waiver?

Stanley M.Brand:

Because the clause is a protection for the member as well even as against —

Byron R. White:

So it’s both?

Stanley M.Brand:

— a hostile Congress.

Byron R. White:

So it’s both?

Stanley M.Brand:

That’s correct.

Byron R. White:

Neither one can waiver —

Stanley M.Brand:

It protects unpopular members as well as popular members —

Byron R. White:

So that —

Stanley M.Brand:

— Democrats as well as Republicans.

Byron R. White:

So Congress cannot by however narrow a piece of legislation —

Stanley M.Brand:

That’s right.

Byron R. White:

— provide for the —

Stanley M.Brand:

Any —

Byron R. White:

— for the executive prosecution of a legislative act.

Stanley M.Brand:

That’s right, any more than we could delegate impeachment for instance.

Thurgood Marshall:

Mr. Brand, Congress I assume could amend the 201 and the other bribery statute and say, “They do not apply to Congressmen.”

Stanley M.Brand:

They could do that.

Our position would be —

Thurgood Marshall:

Well, aren’t you now doing that?

Stanley M.Brand:

No sir, we don’t believe we are.

Thurgood Marshall:

Well, aren’t you trying to get us to do that?

Stanley M.Brand:

I don’t think so.

What we’re saying is as you said in Brewster, these cases can go forward without impugning legislative acts, and that’s what we are saying here.

The residuent —

William J. Brennan, Jr.:

Do you challenge the indictments Mr. Brand or just the evidentiary problem?

Stanley M.Brand:

We do.

William J. Brennan, Jr.:

You agree with Mr. Stavis —

Stanley M.Brand:

We do in this case.

William J. Brennan, Jr.:

Yes.

Stanley M.Brand:

Although we agree also that there is nothing to prevent the U.S. attorney from taking the non-legislative material presenting it to a new grand jury and indicting and going forward to trial.

Potter Stewart:

Except maybe the statute of limitations.

Stanley M.Brand:

If that in fact is a problem.

Byron R. White:

But you would — in that new indictment or in those new grand jury proceedings or in the subsequent trial, the evidence the Government now proposes to use you would say would be unusable?

Stanley M.Brand:

Correct.

Warren E. Burger:

Hasn’t Congress or didn’t Congress take quite a long step in relation to the Speech or Debate Clause when they enacted these provisions?

Stanley M.Brand:

I don’t think so Your Honor, 201 like a plethora of other statutes regulating non-legislative behavior has been passed by Congress in that context.

We have statutes for instance, 18 U.S.C. 431 says that a member may not enter into a contract in which the United States is a party.

That’s not a legislative act, we regulate that by statute.

We regulate campaign financing, because we say that when a member takes a political contribution or campaigns for office, he is not engaging in the legislative process and we regulate that through the United States Code.

I don’t believe you can read 201 in the context of the U.S. Code in the other ways in which we regulate members Congress — conduct as the one example where we have attempted to put into Article III Courts the trial of legislative acts.

I don’t believe that’s consistent with the design of the Code at this time.

At this point we come to the question of the indictment.

We would say that there having been neither a waiver nor a delegation under 201.

The indictment at issue here which charges legislative acts on the basis of what the grand jury heard is fatally defective.

And we say this for several reasons.

This is not Calandra and the Fourth Amendment.

This is not Costello and the Fifth Amendment.

This is the Speech or Debate Clause which is part of the constitution, which the framers placed in the constitution to protect questioning at the earliest possible juncture, not after indictment when the death blow has been dealt as in this case.

Potter Stewart:

Well, to prevent question anywhere in any other place?

Stanley M.Brand:

Correct.

William H. Rehnquist:

But why wouldn’t your interest be served by according to Congressman a right to assert before the grand jury the privilege that you’re talking about now?

Stanley M.Brand:

Our position would not — denying that.

The —

William H. Rehnquist:

But —

Stanley M.Brand:

— grand jury which indicted him —

William H. Rehnquist:

Why wouldn’t it be fully served and if he chooses not to assert it, then there is some form of waiver.

Stanley M.Brand:

Well, if it’s never asserted it never becomes an issue, but in this case the grand jury which ultimately indicted him was one which there could be no waiver because he never appeared before that grand jury.

What we’re saying on the indictment issue is that the indictment is defective because the design of the Speech or Debate Clause is to present — prevent questioning.

If the questioning has already occurred and you are willing to say that we will only at trial put on some evidentiary prescriptions then you have not remedied the potential abuse which exists.

William H. Rehnquist:

But what was the questioning before the grand jury which violated the Speech and Debate Clause?

Stanley M.Brand:

The legislative acts.

It —

William H. Rehnquist:

To whom were the questions addressed?

Stanley M.Brand:

I believe they were directed to the defendant.

William H. Rehnquist:

Well, but why couldn’t he then assert the speech and debate privilege and fully vindicate it by asserting it at that point, and not having done so, he has waived it.

Stanley M.Brand:

Well, under Mr. Stavis’ formulation and I think we would agree with most of that.

A member must answer as to third party crime before a grand jury.

Warren E. Burger:

But as soon as it reached him, is it not implied in both Johnson and the Brewster case that he not only need not answer, he may assert the proposition that he cannot be questioned.

To give an example, if he were sued in a complaint in a civil case for a libel and the complaint alleged that the libel was committed on the floor of the House, could not the member of Congress simply informally tell the Court by letter or any other way, that he was not going to answer because the Speech or Debate Clause protected him.

And he was not going to appear and that any judgment entered on the basis of that complaint would be a nullity under the Speech or Debate Clause?

Stanley M.Brand:

Well as I —

Warren E. Burger:

So that he — it is more than a quite matter of not being questioned or not answering, he can’t even be questioned, isn’t that so?

Stanley M.Brand:

That’s correct.

Warren E. Burger:

Well, but he then submitted to the questioning here.

Stanley M.Brand:

Well, wouldn’t he be — would the same situation occur where he never appeared and the U.S. attorney went to the Library of Congress and took the legislative material out off there, is that a questioning?

He would never have appeared to assert the privilege yet we would assert that that’s prohibited.

William J. Brennan, Jr.:

Well, indeed you look —

Stanley M.Brand:

That the grand jury can’t hear —

William J. Brennan, Jr.:

I thought you would assert that even if he appeared and answered freely, nevertheless.

Stanley M.Brand:

That’s correct, he as a claimant in a Article III Court could come in and claim that he should get a remedy from the Court.

Byron R. White:

Well Mr. Brand, he certainly don’t need to — I know you say that he — the evidence should never have even been presented to the grand jury, but even if there was — even if it was properly presented or even if it could be said that he waived in some matter the presentation of the evidence, you still say that he never consented to be indicted.

Never consented to be threatened with indictment and that would of course solve a lot of your problems if you win on that.

Stanley M.Brand:

Well again, I believe that the heart of the clause is protection of the Congress from coordinate branches.

William J. Brennan, Jr.:

And I gather — I thought your position was so far does that principle go that nothing that he does before the grand jury can support an indictment.

Stanley M.Brand:

Correct.

William J. Brennan, Jr.:

Nothing, isn’t that true?

John Paul Stevens:

Well Mr. Brand, he —

Potter Stewart:

But can he support a waiver?

John Paul Stevens:

— he didn’t testify before this grand jury, did he?

Stanley M.Brand:

The one that he was indicted by?

John Paul Stevens:

Yes.

Stanley M.Brand:

No, he did not.

John Paul Stevens:

He didn’t testify before that grand jury.

Stanley M.Brand:

He did not.

John Paul Stevens:

So your position has to be that evidence of legislative acts is inadmissible before the grand jury even though the man itself is —

Stanley M.Brand:

Yes.

John Paul Stevens:

But the clause doesn’t read that way.

It says that the Congressman shall not be questioned in any other place, it doesn’t say the evidence of legislative act shall not be admissible before a grand jury.

Stanley M.Brand:

Of course the —

John Paul Stevens:

That if he — mentioned even acknowledged with third party crime evidence of legislative act shall be —

Stanley M.Brand:

Well of course the Court — the clause doesn’t say either that, it is merely that evidence shall not be presented.

We would read “shall not be questioned” to include the questioning of his legislative acts whether or not he is the authoror or not.

Thurgood Marshall:

Well, he wasn’t questioned in the grand jury, was he?

Stanley M.Brand:

That at time and the grand jury he was not.

William J. Brennan, Jr.:

But at the time and grand jury is conducting its investigation, it presumably doesn’t have its mind made up what its going to do at the end of the inquiry.

Does it have to stop every time somebody propose and introduced in the — before it a legislative act and decide whether or not it can be received based on what its ultimately going to decide with respect to whom it may indict?

Stanley M.Brand:

But in this case there was the — a mechanism for calling out the legislative acts by presenting — the U.S. attorney by presenting them to the — by not presenting them to the indicting grand jury.

There was a mechanism but it wasn’t used.

John Paul Stevens:

May I ask you one other question?

Is it your view that the Congress retains jurisdiction to punish former members?

Stanley M.Brand:

Yes.

John Paul Stevens:

And what is your authority for that?

Stanley M.Brand:

Well, our authority would be the residual — the inherent power of the body is punished, contempts committed by its members at the time they were members for conduct which occurred when they were members.

John Paul Stevens:

Has the Congress — is it not true that your brief recites an example of three members or it did not have former members of whom did not have jurisdiction.

Stanley M.Brand:

Well, that report raised doubts as to whether there was jurisdiction and those cases against those former members were dropped for other reasons.

Potter Stewart:

The military once asserted jurisdiction to punish its foreign members too, but it got a negative answer from this Court, didn’t it?

Stanley M.Brand:

I believe it did.

We’re talking again about what we would say is the inherent power of the body to punish members not as private citizens but for conduct which occurred in the body when they were —

Potter Stewart:

When they were members.

Stanley M.Brand:

— when they were members.

Potter Stewart:

And that was the military’s theory too.

Warren E. Burger:

Mr. Stavis indicated that you were going to tell us about the number of Congressmen, former Congressmen punished by the House or the Senate.

Potter Stewart:

Yes.

The House has doubted its authority, it’s true as this Court cited in Powell v. McCormack, its authority to expel a member for conduct which occurred before he became a member of Congress.

But it has not doubted its power to punish conduct occurring in a prior Congress.

As was indicated by Mr. Stavis, Oakes Ames —

Byron R. White:

By a man who is no longer a member?

Stanley M.Brand:

No, in that case he was a member of the 42nd Congress, although —

Byron R. White:

So did you say that — has Congress doubted its power to punish conduct occurring in a former Congress by a man who is no longer a member?

Stanley M.Brand:

I’m not sure if there’s ever expressed any view on that.Our view of the self disciplinary process as it is evolving at this stage would be that we would have the power to —

William J. Brennan, Jr.:

Well Mr. Brand is there any instance of a former Congressman tried by the Congress or the House or Senate for a conduct (Voice Overlap) —

Stanley M.Brand:

There is none that I can get to.

William J. Brennan, Jr.:

There are some?

Stanley M.Brand:

See that — I can cite to none.

Byron R. White:

Well, what about — I thought Mr. Stavis indicated there was an instance, is that right or not?

Stanley M.Brand:

Well he talked about the Crédit Mobilierscandal.

Byron R. White:

Well, what about that?

Stanley M.Brand:

And that was disciplined in the 42nd Congress for what occurred in the 40th.

William J. Brennan, Jr.:

Of an incumbent Congressman.

Stanley M.Brand:

Of an — sitting member of Congress.

Byron R. White:

I see.

Stanley M.Brand:

I see that my time is up.

If the Chief Justice would indulge me for one minute I would simply state —

Warren E. Burger:

You may.

Stanley M.Brand:

— that the self-disciplinary process is an evolving process.

Stanley M.Brand:

To say that the legislative acts will go unpunished is not correct.

Legislative misbehavior and misconduct is not immunized.

The House has taken cognizance of acts committed by its members which impugn the integrity of a process.

It’s an evolving process.

It is not static.

We are currently considering proposals for instance, to impanel grand juries of members on a random basis.

We are proceeding a pace with a self disciplinary process.

William J. Brennan, Jr.:

Does the record, Mr. Brand, tell us whether the Congress has given any consideration to whether any action should be taken against former congressman Helstoski?

Stanley M.Brand:

No sir.

And I would leave with this thought that the Solicitor has indicated in his brief that the Congress can’t do both, they can’t discipline appropriately and also legislate.

I believe the record is clear that we can discipline with justice through law that we can do it with due process that we can do it with the full panoply of protections and shields that apply in a criminal case, witness the material we’ve submitted for the record on that.

Thank you.

Warren E. Burger:

Very well Mr. Brand.

Mr. Solicitor General.

Wade H. McCree, Jr.:

Mr. Chief Justice, and may it please the Court.

In June 1976, respondent was indicted in the United States District Court for the District of New Jersey on several charges arising out of grand jury investigations into alleged corruption in connection with private immigration legislation.

Count one charged him as a member of Congress with conspiracy to violate the official bribery statute, that’s 18 U.S.C. Section 201 (c) (1), by acting with Albert Defalco, his former administrative aid and others, to solicit and to receive bribes in return for being influenced to introduce private bills in the House of Representatives.

13 overt acts in furtherance to the conspiracy were alleged.

These overt acts consisted of charges that respondent and his administrative aid met with attorneys who specialize in immigration litigation and from whom they received cash payments in return for being influenced to introduce private bills for named aliens.

The other three overt acts with which we’re concerned here, 2, 3 and 4 also allege the actual introduction of such bills.

Warren E. Burger:

In your view Mr. Solicitor General, for the Government to sustain a case needn’t prove anymore than that the money was taken and the promise to do a future act was made?

Wade H. McCree, Jr.:

That’s —

Warren E. Burger:

Does — in other words, does it need to prove that the bargain was fulfilled?

Wade H. McCree, Jr.:

That’s precisely the Government’s position, if the Court please.

The offense was to solicit bribes to perform an official act and the offense is complete once the bribe is solicited and it is unnecessary to show that an official act was in fact done in response to it.

Warren E. Burger:

Would the crime be consummated if the solicitation were shown but no payment were shown?

Suppose the person solicited refused to pay.

Wade H. McCree, Jr.:

The act, if the Court please, it would be under 201 (c) the act is in fact completed when the solicitation is made for the purpose of being influenced.

William J. Brennan, Jr.:

But Mr. Solicitor General, I gather — Judge Meanor said you could not be — use the evidence of bills, private bills actually being introduced, did he not?

Wade H. McCree, Jr.:

That’s exactly that —

William J. Brennan, Jr.:

And you disagree, don’t you?

Wade H. McCree, Jr.:

I do not — we do not disagree with Judge Meanor if a waiver took place.

We agree that Judge Meanor is correct that we could not show the introduction of the bills which is the showing of legislative acts unless a valid waiver occurred.

But we contend —

William J. Brennan, Jr.:

Heard when and how?

Wade H. McCree, Jr.:

We submit that a valid waiver occurred when Mr. Helstoski voluntarily presented voluminous correspondents including copies of the very bills that he introduced after he was told that he needn’t — that he was not required to do that.

And he did it voluntarily and as Judge Meanor found, he knew of his speech or debate privilege when he did it.

Although it was not called directly to his attention, he had raised this privilege in other litigation involving the alleged abuse of the franking privilege.

And in fact in his penultimate appearance before the grand jury, he also invoked the Speech or Debate privilege, and so Judge Meanor’s finding that he knew it is amply supported and the U.S. attorney told him that he did not have to submit these matters.

Byron R. White:

Well, the — but — just so I had it clear, but absent the waiver you agree that under Brewster in irrelevant cases and under the clause, you could not introduce the evidence that you proposed to introduce?

Wade H. McCree, Jr.:

We do.

We concede this.

As a matter of fact the — I’d like to move perhaps right on to the nature of the evidence that is involved here.

We think that this evidence falls into three categories.

First, the bills themselves which as I’ve just responded are clearly legislative acts, evidence of legislative acts and absent a waiver, we agree that we could not introduce those.

There’s a second category of evidence and this consists of correspondence between Helstoski, Defalco, some of the attorneys who represented some of the aliens and some of the aliens themselves.

Now we submit that these evidence has to be examined by the District Court on an item by item basis to see whether it —

William J. Brennan, Jr.:

I suppose it refers —

Byron R. White:

Pardon me?

William J. Brennan, Jr.:

— it corresponds — suppose — as I read some of this, some of these correspondents says, “I did this” or “I didn’t do that” in connection with the given private bill.

Stanley M.Brand:

Well,

William J. Brennan, Jr.:

Would that be within this category?

Wade H. McCree, Jr.:

No, we believe that that is not barred from evidence because —

William J. Brennan, Jr.:

Even though it refers to something he did or didn’t do —

Wade H. McCree, Jr.:

Even though it refers —

William J. Brennan, Jr.:

— that could be —

Wade H. McCree, Jr.:

— to something he did or didn’t do because —

William J. Brennan, Jr.:

Even though while he says he did or didn’t do would’ve been a legislative act.

Wade H. McCree, Jr.:

Exactly, but he may not have done it.

If there’s a letter saying, “If you give me a certain sum of money, I will cause a private bill to be introduced for you.”

Wade H. McCree, Jr.:

This is clearly not a legislative act.

Byron R. White:

So you say that under — that Brewster it would not require exclusion of a promise to introduce a bill in return for money?

Wade H. McCree, Jr.:

As I read Brewster, Brewster would not require its exclusion because it relates —

William J. Brennan, Jr.:

Well what if — Mr. Solicitor General, the exclusion, I introduced the private bill on your behalf on such and such a date?

Wade H. McCree, Jr.:

Well, I assume that as — let us assume that that’s a false statement that he did not in fact introduce a private bill, but he said this for the purpose of eliciting a payment.

William J. Brennan, Jr.:

And suppose he did though?

Potter Stewart:

Suppose he didn’t —

Wade H. McCree, Jr.:

Well, —

Potter Stewart:

— introduce the —

John Paul Stevens:

If it were introduced for the purpose of showing that he did in fact introduce the bill, I would agree with the Court.

William J. Brennan, Jr.:

Well, —

John Paul Stevens:

Could that —

William J. Brennan, Jr.:

Will be excluded then but —

No, but suppose —

Wade H. McCree, Jr.:

I would agree that they would be excluded, yes.

Byron R. White:

Suppose was introduced to prove the case that he took money for doing — for a legislative act or for an official act?

Wade H. McCree, Jr.:

We submit that it’s admissible that the Court should find that it’s admissible for that purpose because soliciting a bribe is clearly and concededly not in a legislative act.

And whatever inducement he may employ for the purpose of soliciting the bribe can not therefore a legislative act and that that is not forbidden by the Speech or Debate Clause.

John Paul Stevens:

But Mr. Solicitor General it isn’t forbidden by the District Court order either is it, if it’s a future — if you’re talking about the future?

Wade H. McCree, Jr.:

If the Court please, that is the way I read that and we would suggest that the past-future dichotomy is not a valid one.

We submit that the Court is — the District Court was too restrictive because under the old Hillman case for example, a statement of a present intention to do something in the future can be the basis for a finding that it was in fact done.

And so we think logically, the Court should’ve — should not even have made the past-future dichotomy and should’ve said that in both instances, evidence would be admissible.

John Paul Stevens:

But as I understood your comment a moment ago you said a letter assumed by the Congressman he wrote to someone said, “If you give me X dollars, I will introduce such and such a bill.”

And you said, “That would be reference to a future act that may or may not ever be performed.”

Wade H. McCree, Jr.:

Exactly.

John Paul Stevens:

And would therefore be admissible or should be admissible and as I understand it, that’s admissible under the District Court’s —

Wade H. McCree, Jr.:

This is also my understanding and —

John Paul Stevens:

And —

Wade H. McCree, Jr.:

— but the district judge —

John Paul Stevens:

But then you said —

Wade H. McCree, Jr.:

— said that the reference to the past —

John Paul Stevens:

Right, that a question is —

Wade H. McCree, Jr.:

— is not.

John Paul Stevens:

Could such a letter be admissible if it said, “You will recall that two months ago you gave me $500.00 and I introduced such and such a bill in exchange for that.”

Now would that —

Wade H. McCree, Jr.:

If —

John Paul Stevens:

— letter be admissible?

Wade H. McCree, Jr.:

We submit that it would because that statement might be false, and if he said that for the purpose of eliciting a further payment and he had not in fact introduced a bill, he wouldn’t be (Voice Overlap) —

John Paul Stevens:

I see, do not offer — or the truth of the matter asserted in the letter?

Wade H. McCree, Jr.:

Exactly.

William H. Rehnquist:

General McCree, I suggest you that my earlier colloquy with Mr. Stavis is not entirely irrelevant to some of the questions that my Brother have been asking you.

This is a very hypothetical situation we’re presented with and I take it you agree that the jurisdiction of this Court exist by virtue of 28 U.S.C. 1254 that the case was in the Court of Appeals and we therefore have jurisdiction to review it.

Wade H. McCree, Jr.:

We do and we concede however that unless the Court of Appeals had jurisdiction that this Court does not have jurisdiction.

William H. Rehnquist:

And the only way the Court of Appeals had jurisdiction was pursuant to 18 U.S.C.3731?

Wade H. McCree, Jr.:

Exactly and we contend that this is an order suppressing evidence under 3731, and as such it’s appealable if the appeal were taken before the defendant was placed in jeopardy.

And we submit that the provision itself admonishes us to give it a liberal construction to effectuate its purposes that is to allow the Government to have a ruling before a defendant is placed in jeopardy.

William H. Rehnquist:

Do you think the Government could come in and on its own without the defendant making any motion to say, “This is the evidence we’re going to present at trial, we’d like the trial court to rule on whether it will be admissible or not.”

And the trial court divides it into categories and said, “This will be admissible, this isn’t.”

And the Government can then appeal, say that Court’s determination that certain evidence is hearsay and were therefore be inadmissible?

Wade H. McCree, Jr.:

That’s a difficult question, if the Court please.

An order in (Inaudible) which is really what it is, indicating what evidence might or might not be introduce is admissible under some systems or procedure.

Now whether the federal rules or criminal procedure permit it, I can’t direct the Court’s attention to a specific provision.

But in this case the Court did and the Court had the matter properly before it on the — on Mr. Helstoski’s motion to dismiss.

Then Mr. Helstoski raised several questions about the evidence and the Court in its ruling, in fact in its first ruling, its our ruling, it said that we would have to redact the indictment.

But in a subsequent written opinion it indicated that we didn’t have to redact the indictment but that as the Court has already pointed out, we could show evidence of promises to perform future legislative acts, but not past ones.

And so we submit that the Court did in fact suppress evidence, and we suggest that although this Court hasn’t decided the question, there are a number of decisions in the Courts of Appeals which have done exactly this.

One case that I recall is Batiste versus the United States, in which the Sixth Circuit decided that.

And another one in which the — this Court denied certiorari, that’s United States versus Craig from the Seventh Circuit.

We suggest that the Speech or Debate Clause creates immunity for a Congressman from civil or criminal liability for his legislative acts and we concede that it shouldn’t be construed as narrowly as just a speech or a debate in the Congress, but that it’s the kind of act that’s generally done in furtherance of a legislative process which certainly doesn’t include soliciting a bribe.

And so we say that there is an immunity for prosecution for a legislative act.

Wade H. McCree, Jr.:

We further submit that the Court has developed an evidentiary privilege, an implementation of this immunity.

And as the Court has done with the other privileges, evidentiary privileges that it has created, that we suggest that the shield should not be any roader than is necessary to protect the interest for which it was established.

William J. Brennan, Jr.:

And all was waivable I gather?

Wade H. McCree, Jr.:

I beg your pardon?

William J. Brennan, Jr.:

All was waivable?

Wade H. McCree, Jr.:

And we suggest too that it is waivable.

And in this respect of course there isn’t any question but that Mr. Helstoski made a gesture before the grand jury of a clean breast of everything.

“I want the grand jury to know that I have nothing to hide” and he brought in all of these materials although he was told that he was not required to do this.

And to permit him to do this and then to assert a privilege would be to make a mockery our off the privilege because he would just have it one way and not both ways.

And the Court does not permit that in other matters and we see no reason why it should in this matter.

We’d also like to suggest that there’s another reason why the district — why this indictment is good and why the District Court’s restriction on evidence should be reversed.

We advanced the theory in Brewster that was suggested in Johnson that if there were a narrowly statute, narrowly drawn to achieve the end of regulating the conduct of its business, that the Congress could then involve the executive branch and the judicial branch in it’s — in the discipline of its members.

And we suggest that in Section 201 the Congress has done exactly that in its definition of who is an official.

For the purpose of Section 201, it specifically provides that a member of the Congress is, and then it specifically sets forth the offenses which the defined officials cannot — I’m — may, of which they may be found guilty.

So clearly, this is a statute narrowly drawn to achieve the end of regulating the conduct of its members.

And we suggest that there’s a good reason for it too.

And my brother who was arguing here a few moments ago suggested or stated in response to a question from the Court that a jury wouldn’t be available if a member of the Congress was called on for trial.

The Congress has decided that for this purpose with the third branch involvement there will be a jury, there can be confrontation, right of counsel.

Warren E. Burger:

Not only that there can, there must be.

Wade H. McCree, Jr.:

There must be, I thank the Court for the correction.

There must be.

And we submit that the Congress has indeed done this with a carefully drawn statute which distinguishes it from Johnson.

This Court didn’t address this question in Brewster although the Government briefed it.

But we suggest that this is another basis for arriving at the result that we request.

William J. Brennan, Jr.:

Mr. Solicitor General, may I be sure I understand your — you’re suggesting in substance, as I understand it that Congress can waive the privilege in certain limited areas, is that right?

Wade H. McCree, Jr.:

We do.

William J. Brennan, Jr.:

Could they pass a statute that says members may be questioned about banking legislation or members may be questioned about legislation dealing with any other specific subject in which perhaps a minority of the Congress might be vitally interested and the majority might not be interested?

Wade H. McCree, Jr.:

I think these are clearly legislative acts and I would have difficulty with that, my —

William J. Brennan, Jr.:

If they can’t waive in that situation how can they waive here?

Wade H. McCree, Jr.:

Well there — what they are doing is asserting that members may be tried for non-legislative acts, which is what we have here, the soliciting of a bribe.

William J. Brennan, Jr.:

Then if you — they’d have a non-legislative act, you don’t need the waiver, as I understand —

Wade H. McCree, Jr.:

Well this is really in response to the argument that the Congress has exclusive jurisdiction of the disciplining of its members.

And we don’t think that we have to labor that because we think if the Court is to agree with his argument there, it would have to reverse Brewster.

Byron R. White:

Well, –(Voice Overlap) —

Wade H. McCree, Jr.:

— we don’t understand —

Byron R. White:

I thought your position was that with a narrowly drawn statute, Congress could authorize the prosecution of Congressman for the performance of legislative acts.

Wade H. McCree, Jr.:

No.

If the Court please, I did not mean to give that impression, if I did I stand corrected.

Byron R. White:

Well, then what relevance is your argument in this case then —

Wade H. McCree, Jr.:

Well, this is just —

Byron R. White:

— at this point.

Wade H. McCree, Jr.:

— this is just a second argument why the Congress with a narrowly drawn statute could involve the executive branch and the judicial branch in the disciplining of its members.

In addition to the argument that prevailed in Brewster, identifying the act is a non-legislative act, the taking of the bribes.

Byron R. White:

So you’re just saying that Congress with a narrowly drawn statute could authorize the executive to end — to punish a Congressman for conduct falling outside the Speech or Debate Clause?

Wade H. McCree, Jr.:

Exactly.

Byron R. White:

That’s as far as you —

Wade H. McCree, Jr.:

That is as far as that argument goes.

Byron R. White:

And this argument — and it also — so that this argument doesn’t affect whether or not this evidence is admissible?

Wade H. McCree, Jr.:

Only in this sense that since this is a non-legislative act, evidence —

Byron R. White:

Well, —

Wade H. McCree, Jr.:

— soliciting a bribe, evidence can be introduced in support of it.

Byron R. White:

Yes, as long as if you’re right on that, if you’re right on that maybe.

But if the Court thought that this involved evidence or conduct protected by Speech or Debate Clause, your argument then would fall by the wayside?

Wade H. McCree, Jr.:

We would have to go to our waiver argument.

It would fall by the wayside and only a waiver would permit a prosecution for that.

Byron R. White:

And so you at least say then that the privilege or the immunity belongs to the member individually?

Wade H. McCree, Jr.:

On in — it was referred — with respect to the waiver we do.

And we suggest that we it would be —

Byron R. White:

Yes but it also is — it’s something that Congress can’t waive for him?

Wade H. McCree, Jr.:

We suggest — that the entire Congress?

Byron R. White:

Yes.

Wade H. McCree, Jr.:

Well, superficial —

Byron R. White:

I just asked you if Congress could by a narrowly drawn statute authorize the prosecution for a legislative act, and you said no.

Wade H. McCree, Jr.:

Yes, that’s correct and I will not retreat from that position.

Byron R. White:

So that the —

Wade H. McCree, Jr.:

And I’m suggesting that —

Byron R. White:

— privilege does belong to the individual.

Wade H. McCree, Jr.:

It belongs to the individual.

Byron R. White:

Yes.

Wade H. McCree, Jr.:

It does indeed.

And I suggest that to allow an individual to have it both ways is contrary to our whole system of jurisprudence that if he doesn’t claim, if he does expressly waive, clearly we think he can be prosecuted.

Byron R. White:

But he — but in this case, I don’t see — is there some evidence that he consented to be prosecuted for a legislative act?

Wade H. McCree, Jr.:

No he did not expressly waive, but we have this —

Byron R. White:

Not, no did he ever consent to be prosecuted for a legislative act?

Wade H. McCree, Jr.:

He did not consent to be prosecuted for a legislative act.

Warren E. Burger:

Do we need to decide in this case whether Congress could by a very statute more narrowly drawn perhaps than Section 201 submit to the trial for a legislative acts, do we need to decide that here?

Wade H. McCree, Jr.:

We need not because the act here, soliciting for a bribe is clearly and concededly not a legislative act.

Warren E. Burger:

But the case could be decided narrowly on the basis of Brewster and Johnson?

Wade H. McCree, Jr.:

We believe that it can, but we believe that —

Warren E. Burger:

Either way apparently, if I — you listen to the other side.

Wade H. McCree, Jr.:

Well, we believe however that Judge — that the Court of Appeals was too restrictive and that Judge Meanor was too restricted — restrictive and this Court should reverse that decision of the Third Circuit to —

Warren E. Burger:

Well, there’s another alternative, isn’t there and that is to let them go their way and see what happens?

Wade H. McCree, Jr.:

That is another course that’s available to the Court too.

But we think that the district judge could benefit from the guidance of this Court in indicating what was referred to in Brewster as Acts relating to legislative acts and not legislative acts themselves.

William J. Brennan, Jr.:

Well I gather Mr. Solicitor General that the Government thinks it has a case even without the materials that Judge Meanor sought that it would exclude it.

Wade H. McCree, Jr.:

We believe that —

William J. Brennan, Jr.:

(Voice Overlap) enough to get to the jury.

Wade H. McCree, Jr.:

We believe the Government has such a case and we have filed with the Court a sealed appendix that I think contains sufficient evidence to go to the jury, but we would like to take the strongest case we can.

My Brother didn’t speak about his mandamus action and at least that aspect of it there was a basis for the Court of Appeals denial of his petition and we think that the Court of Appeals was clearly right there.

And unless the Court has any questions about that, I would not discuss that in argument here.

Wade H. McCree, Jr.:

If the Court please, then that concludes the argument of the Government in this manner.

Warren E. Burger:

Thank you Mr. Solicitor General.Do you have anything further Mr. Stavis?

Morton Stavis:

Yes I do.

Warren E. Burger:

You have about three minutes left.

Morton Stavis:

Alright, thank you very much.

Picking up the colloquy between the — Mr. Justice White and Solicitor General, it seems now to be conceded that the Congress cannot waive into an Article III Court trial of a legislative act.

Warren E. Burger:

Well, I didn’t — it could —

Morton Stavis:

I cannot believe —

Warren E. Burger:

If you understood it that way, I didn’t.

Morton Stavis:

I think that was what the Solicitor General —

Warren E. Burger:

He — I thought he has said Congress has not done that up to now.

Morton Stavis:

I thought he went further.

Byron R. White:

I asked him that, whatever is — that you have to — that was my question anyway whether if —

Morton Stavis:

I thought —

Byron R. White:

— his answer was that it’s another matter.

Warren E. Burger:

Do we need to decide whether what Congress could do in the future?

Morton Stavis:

I understand that.

I understand that you don’t have to decide this question, but I thought I heard the Solicitor General conceding that.

If I’m wrong, I’d respectfully request to be excused for this error, but if I am right then what the Solicitor General is saying is that while the whole body of Congress can’t waive into an Article III Court one member can.

And it just seems to me that that falls of its own way.

Warren E. Burger:

Could there —

Why didn’t (Voice Overlap) —

Warren E. Burger:

— (Voice Overlap) anything that Congress could not do to waive your rights or my rights which you or I individually might well do.

Morton Stavis:

But not when the rights relate to the jurisdiction of a Court.

I can’t waive myself into this Court, that’s one of the points that Mr. Justice Rehnquist suggested.

We can’t, by the fact that I may not even cross-petition.

I can’t waive the objection to the jurisdiction of the Third Circuit.

And if this is jurisdictional then the waiver argument doesn’t apply either with respect to Congress as a whole or with respect to an individual member of the Congress.

Now, I would like if I may to approach for a moment —

John Paul Stevens:

Well, then let’s test that Mr. Stavis.

Morton Stavis:

Sir.

John Paul Stevens:

Supposing the Congressman is called before a grand jury.

He’s alone in the grand jury room and a bunch of questions are asked of him, but that all of which pertain to legislative acts, he could answer those couldn’t he?

Morton Stavis:

He not only could answer them, but if he is not the target I believe he is required to answer.

John Paul Stevens:

Assume he’s the target?

Morton Stavis:

Well, if he’s —

John Paul Stevens:

He still could answer them if he decides I think I’ll answer these questions.

Morton Stavis:

If he is the target and if he answers then he is probably subject to discipline by the House.

But he of course, he can —

John Paul Stevens:

I mean, for waiving his cons — his privilege, you say, that (Voice Overlap) —

Morton Stavis:

I respectfully suggest to you that you look at Jefferson’s manual which is recorded in our brief in which he says, “Yes, he may not waive that privilege of the House of speech or debate.

But even if the House should overlook that and he has waived it then he has testified — he has testified.

The next question is, what’s the consequence of that testimony?

Does that waive him into an Article III Court when the constitution says the Article III Court has no jurisdiction?

I’ve never been able to go to a courthouse and say, “Please take this case even though you don’t have jurisdiction.”

Thurgood Marshall:

But isn’t the grand jury in an Article III Court?

Morton Stavis:

The grand jury is partially in an Article III Court that —

Thurgood Marshall:

Partially?

Morton Stavis:

Partially, as it’s also I think something else too.

I think it’s an honor of the executive.

Byron R. White:

Well Mr. Stavis, there’s no evidence here that —

Morton Stavis:

I’ve been lit up but if I —

Byron R. White:

Yes.

Morton Stavis:

— I’d like to add (Voice Overlap) —

Byron R. White:

There’s no evidence here that he — that even if a Congressman appear before the grand jury and freely talked about legislative acts, made no objection whatsoever, if he didn’t go on and say, “I also waive my immunity from prosecution for a legislative act”, he wouldn’t have waived his immunity from prosecution.

Morton Stavis:

Of course not, and he never even said —

Byron R. White:

There isn’t any evidence like that here.

Morton Stavis:

Not in the slightest, not in the slightest.

May I have 30 seconds?

And then he —

Warren E. Burger:

We’ll give you 60.

Morton Stavis:

Thank you very much Your Honor.

I want to focus on my case in just a moment and that is the indictment.

And particularly on what may be attractive to some of the members of the Court which is, “Well let’s just fix up this indictment.”

And I simply want to say that the consequence of that is that you remove the effective operation of the Speech and Debate Clause at the point where it’s most important namely where it is accusatory.

Now in Kilbourn against Thompson that used the meaning of the term questioning was not Mr. Justice Stevens’ in terms of do you ask a question.

It is rather, may you make a charge.And I respectfully refer you to Mr. Justice Miller’s opinion in which he equates the Speech or Debate Clause the term questioning to the language of the Massachusetts constitution which refers to accusation.

If you take that concept and then move over to Mr. Justice Rehnquist’s question and say, “Is there any case where you set aside an indictment because there’s something that happened in the grand jury?”

And I say that that’s exactly what you do in the immunity type case where a grand jury heard testimony that was barred from him, they shouldn’t have heard him.

And you say to that prosecutor, “Well if you did it, we cancel that indictment.

If you want to go ahead and not use that prohibited testimony, you’re free to do so.”

And that’s all we’ve ever said here, and if the prosecutor should decide not to do that, in any event we said that the Congress has jurisdiction.

And I’m very grateful to you, Your Honor, for indulging me to that extent.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.