among defendants Criden, Errichetti, and Johanson. Having understood that he was to receive $50,000, not $15,000, Rep. Myers, said Count I, subsequently demanded an additional $35,000 from Poulos and Cohen as a condition to his rendering immigration assistance to the foreign businessmen.

Count II charged that Rep. Myers, by soliciting and receiving payment in return for his promise to provide immigration assistance, committed bribery, contrary to 18 U.S.C. § 201(c).3

The remaining defendants were charged with aiding and abetting Rep. Myers in the commission of bribery. Accordingly, they were charged with criminal liability as principals, pursuant to 18 U.S.C. §2.4

Count III charged that on August 22, 1979 the defendants traveled in interstate commerce (from New Jersey and Pennsylvania to New York) with intent to promote an unlawful activity, to wit, bribery. Such travel was said to violate 18 U.S.C. § 1952 (Travel Act).5

On June 5, 1980, Rep. Myers entered a plea of not guilty to all counts.

On July 1, 1980, the Committee on Standards of Official Conduct of the U.S. House of Representatives ("Committee") filed an application for an order authorizing the Department of Justice to disclose to the Committee ABSCAM-related material (except grand jury transcripts) in the custody of the Department or the grand jury. The application explained that under clause 4(e)(1) of Rule X of the Rules of the House, the Committee was authorized to investigate alleged violations by Members of their official duties. The Committee also stated that on March 27, 1980, the House adopted Resolution 608 which specifically directed the Committee to conduct a full investigation into the ABSCAM affair and to report any recommendations for disciplinary action to the full House. The Committee further stated that the information sought through the instant application was essential if Congress was to carry out its constitutional function of imposing discipline on its Members. The application concluded by noting that the Committee would take

318 U.S.C. § 201(c) provides: Whoever, being a public official or person selected to be a public official, directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity in return for: (1) being influenced in his performance of any official act; or

(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of fraud, on the United States; or

(3) being induced to do or omit to any act in violation of his official duty, shall be fined not more than $20,000 or three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

+18 U.SC. § 2 provides: (a) Whoever commits an offense against the United States or aid, abets, counsels, commands, induces or procures its commision is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

518 U.S.C. § 1952 provides, in pertinent part: (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent

to

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any unlawful activity; or

(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

precautions-including requiring Committee Members and Committee counsel to execute confidentiality agreements-to prevent unnecessary or inappropriate disclosures of materials and information received. On July 4, 1980, the Committee's application was granted.

On July 10, 1980, Rep. Myers filed a motion to dismiss in which he attacked the indictment on a variety of grounds. It was his belief that the indictment: (1) violated the doctrine of separation of powers and the Speech or Debate Clause of the U.S. Constitution; 6 (2) failed to state an offense; (3) was predicated on an unconstitutional statute, to wit, 18 U.S.C. § 201; and (4) raised political questions and was therefore nonjusticiable.

Regarding the first claim, Rep. Myers stated that the grand jury based its indictment of him, in significant part, on documents and other information that were privileged under the Speech or Debate Clause. Specifically, the defendant alleged that Federal law enforcement officials obtained information regarding his past activities regarding private immigration bills from the House Information System ("HIS") and presented this information to the grand jury. Rep. Myers also claimed that four members of his legislative staff, pursuant to subpoenas duces tecum, were ordered to transmit his appointment books, travel logs, and telephone logs to the grand jury, and that apparently the staff members complied. In arguing that this HIS information and the official logs and books reflected instances of legislative acts, and therefore could not constitutionally be scrutinized under the Speech or Debate Clause, Rep. Myers relied heavily on the holding in In Re: Grand Jury Investigation, 587 F.2d 589 (3rd Cir. 1978). Finally, Rep. Myers claimed that it appeared that the grand jury was shown videotapes of him. Allegedly, these videotapes should not have been shown because they "contained references to past legislative acts and the motivation therefor, specific references to speech or debate on the floor of the House of Representatives, and references to numerous acts which are indeed integral parts of the deliberative and communicative process . . [Motion of Michael O. Myers to Dismiss Indictment, July 10, 1980, at 14] Rep. Myers stated that when an indictment has been tainted by a grand jury's consideration of matters protected by the Speech or Debate Clause, the only remedy is dismissal. In support of this contention, Rep. Myers cited the opinion of U.S. District Court Judge Curtis Meanor in United States v. Helstoski. (See page 71 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.) Rep. Myers' final point was that even if his indictment was not tainted by the consideration of legislative acts, it would still have to be dismissed because in order to defend himself at trial he would have to introduce evidence of his legislative acts. In effect, said Rep. Myers, a trial on this indictment would impermissibly force him to either waive his Speech or Debate Clause protection or relinquish his due process right to present a full and complete defense.

Next, the defendant asserted that the indictment failed to state an offense. His argument was that 18 U.S.C. § 201(c) (bribery) requires proof that the defendant corruptly agreed to be influenced

6 The Speech or Debate Clause provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

in his performance of an official act. If no official act has been or could be performed, reasoned Rep. Myers, then no bribery could be charged. Thus, said the defendant, this indictment was defective because it was impossible for him to render immigration assistance (i.e. perform an official act) for the benefit of foreign businessmen who in fact did not exist.

Rep. Myers' third argument was that section 201 was unconstitutional both on its face and as applied. Regarding facial validity, Rep. Myers stated that the passage of section 201 was an unconstitutional infringement upon the separation of powers doctrine, the Speech or Debate Clause, and the Punishment Clause.' In Rep. Myers' view, the separation of powers doctrine "provides that one branch of government may not intrude into the exclusive functioning of another branch yet this is precisely what the instant legislation attempts to do in diverting consideration of matters involving the behavior of House Members, to branches other than the legislative branch." [Motion of Michael O. Myers to Dismiss Indictment, July 10, 1980 at 25-26] With respect to section 201's validity under the Speech or Debate Clause, Rep. Myers said:

[T]he Speech or Debate Clause states that no legislator may be questioned in any arena regarding speech or debate. Defendant suggests that the passage of this legislation invaded this protection for it provided for judicial scrutiny of and executive enforcement of acts coming within the purview of the Speech or Debate Clause. A constitutional provision cannot be so infringed upon by a legislative enactment, absent a constitutional amendment. [Id. at 24]

Regarding the Punishment Clause, Rep. Myers said:

This Constitutional provision thus sets forth a mandated procedure by which House Members can maintain internal control over their body. This Constitutional provision cannot be so ignored by the passage of Section 201, which directly violates the underpinning of the Punishment Clause, and delegates to other branches of government, the responsibility for punishing and examining House Members for alleged disorderly conduct. [Id. at 25]

Next, Rep. Myers claimed that section 201 was applied in an unconstitutional manner in this case. His argument was that the present indictment exemplified a deliberate pattern of selective enforcement, and that the conduct of the Government "was manipulative, intentional, and carefully planned . . . to intimidate, harass and compromise members of the Legislative Branch." [Id. at 33] The framers of the Constitution, said Rep. Myers, formulated the Speech or Debate Clause in order to protect legislators against the type of intimidation used by the Government in the instant case. To allow the Government to invoke section 201 against him, concluded Rep. Myers, would thus violate the Speech or Debate Clause and would serve to erode the independence of the legislative

The Punishment Clause of the U.S. Constitution provides: "Each House may . . punish its Members for disorderly Behavior." [art. I § 5, cl. 2]

branch. Rep. Myers also claimed that the indictment, as framed, contained numerous references to legislative acts. Consequently, the Government would have to introduce at trial evidence protected by the Speech or Debate Clause. Rep. Myers' final argument concerning section 201 was that Congress never intended that the statute would be used to permit Government agents to establish wholly fictitious criminal enterprises in order to tempt Members of Congress to accept bribes.

The fourth major point raised by Rep. Myers in his June 10, 1980 motion to dismiss was that the instant prosecution presented a nonjusticiable political question. First, said Rep. Myers, there was a textually demonstrable constitutional commitment of the issue to a coordinate political department in that the Punishment Clause and the Speech or Debate Clause provide for the resolution of problems of the type presented in the indictment. Second, it would be impossible for the court to resolve the issues in this case without showing a lack of respect for either the legislative or executive branch. Third, judicial resolution of the issues would not necessarily be the final word since Rep. Myers would also be subjected to disciplinary action by the House of Representatives. Thus, judicial resolution would present a "potentiality of embarrassment from multifarious pronouncements by various departments on one question." [Id. at 37, quoting Baker v. Carr, 369 U.S. 186, 217 (1962)]

On July 11, 1980, the court, Judge Jacob Mishler presiding, denied Rep. Myers' July 10, 1980 motion to dismiss. No memorandum accompanied the court's decision.

On July 18, 1980, Rep. Myers appealed the denial of his motion to dismiss to the U.S. Court of Appeals for the Second Circuit.

On August 8, 1980, the court of appeals issued its decision. [United States v. Myers, 635 F.2d 932 (2d Cir. 1980] In an opinion delivered by Circuit Judge Jon O. Newman, the decision of Judge Mishler was affirmed. Turning first to the appealability of Judge Mishler's decision, the circuit court likened the instant case to Helstoski v. Meanor, 442 U.S. 500 (1979). In Holstoski the U.S. Supreme Court had ruled that a Member of Congress was entitled to appeal, in advance of trial, the denial of a motion to dismiss, where the motion alleged violations of the Speech or Debate Clause. The Supreme Court had reasoned that the Speech or Debate Clause was designed to protect Members not only from the results of litigation, but also from the burden of defending themselves. Thus, said the Supreme Court, if a Member is to enjoy the full protection of the Clause, his challenge to an indictment must be appealable before exposure to trial occurs. For these reasons, the circuit court held that it had jurisdiction to hear Rep. Myers' Speech or Debate Clause claims. The court further held that the reasoning in Helstoski also permitted-if not required-the circuit court to provide pretrial review of Rep. Myers' challenges to the indictment based on the separation of powers doctrine. Said the court:

Though this doctrine does not provide as precise a protection as the Speech or Debate Clause, there are equivalent reasons for vindicating in advance of trial whatever protection it affords as a defense to prosecution on criminal charges. If, because of the separation of powers, a par

ticular prosecution of a Member of Congress is constitutionally prohibited, the policies underlying that doctrine require that the Congressman be shielded from standing trial. Like the Speech or Debate Clause, the doctrine of separation of powers serves as a vital check upon the Executive and Judicial Branches to respect the independence of the Legislative Branch, not merely for the benefit of the Members of Congress, but, more importantly, for the right of the people to be fully and fearlessly represented by their elected Senators and Congressmen. [635 F.2d at 935936]

After noting that little would be lost in the way of judicial efficiency if pre-trial appeals by indicted Members of Congress were to include all legal defenses, the court found that it also had jurisdiction to decide Rep. Myers' claims regarding the applicability and constitutionality of 18 U.S.C. § 201.

The circuit court then turned to the merits. The court rejected Rep. Myers' claim that the grand jury improperly considered information protected by the Speech or Debate Clause. In this regard, the court stated:

Appellant's... claim is that the indictment should be dismissed because the grand jury that returned it heard some evidence of legislative acts that is privileged by the Speech or Debate Clause. Normally, an indictment is not subject to dismissal on the ground that there was "inadequate or incompetent" evidence before the grand jury. Costello v. United States, 350 U.S. 359, 362 (1956). This rule has been specifically applied to reject a claim that a grand jury heard some evidence protected by the Speech or Debate Clause. United States v. Johnson, 419 F.2d 56 (4th Cir. 1969), cert. denied, 397 U.S. 1010 (1970). See also United States v. Helstoski, 576 F.2d 511, 519 (3d Cir. 1978), aff'd without consideration of this point, sub nom. Helstoski v. Meanor, 442 U.S. 500 (1979); contra, United States v. Helstoski, Crim. No. 76-201 (D.N.J. Feb. 27, 1980) (unpublished). The procedural history of Johnson makes it especially instructive. Congressman Johnson's original conviction on both substantive and conspiracy counts was reversed by the Fourth Circuit, 337 F.2d 180 (1964). The Supreme Court agreed that retrial was necessary because a portion of the conspiracy count_specifically charged conduct protected by the Speech or Debate Clause. 383 U.S. at 176-77.

However, the Supreme Court remanded for a new trial on the original indictment, requiring only deletion of that portion of the indictment charging protected conduct. [Id. at 185] Though the grand jury that had returned the indictment obviously had heard evidence of the protected conduct, which it had specifically alleged to be part of the conspiracy, the Supreme Court raised no objection to retrial on the redacted indictment. On appeal from Johnson's second conviction, the Fourth Circuit considered and rejected his challenge to the grand jury's receipt of privi