—U.S.—, 61 L Ed 2d 12, 99 S Ct― [No. 78-349] UNITED STATES, Petitioner, V. HENRY HELSTOSKI Argued March 27, 1979. Decided June 18, 1979. Decision: Evidence of legislative act by member of Congress, in bribery prosecution under 18 USCS § 201, held inadmissible under speech or debate clause. SUMMARY In the course of an investigation by the Department of Justice into allegations that aliens had paid money to secure the introduction in Congress of private bills which would suspend the application of the immigration laws so as to allow them to remain in the country, an individual, who was at the time a member of Congress, appeared voluntarily before grand juries on numerous occasions. The Congressman testified as to his practices in introducing private immigration bills, and provided his files on numerous private bills, which included correspondence and copies of bills introduced on behalf of various aliens. Initially, the congressman invoked no constitutional privileges. After several appearances, however, he began to assert his Fifth Amendment privilege while also referring to his privilege under the speech or debate clause of the Federal Constitution (Art I, § 6). Ultimately, he was indicted for violating 18 USCS § 201 in connection with his alleged acceptance of money for promising to introduce, and introducing, private bills. The congressman then moved to dismiss the indictment in the United States District Court for the District of New Jersey, contending, among other things, that the indictment violated the speech or debate clause. The District Court denied the motion, ruling that the clause did not require dismissal. However, the District Court concluded that the government would not be allowed to offer evidence at trial of the performance of past legislative acts by the Congressman. The United States Court of Appeals for the Third Circuit affirmed the District Court's evidentiary ruling, rejecting the government's arguments that legislative acts may be introduced to show motive, and that legislative acts could be introduced because the Congressman had waived his privilege by testifying before the grand juries (576 F2d 511). On certiorari, the United States Supreme Court affirmed. In an opinion by Burger, Ch. J., joined by White, Marshall, Blackmun, and Rehnquist, JJ., it was held that under the speech or debate clause, evidence of a past legislative act of a member of Congress may not be introduced by the government in a prosecution of the member under 18 USCS § 201, since the values protected by the speech or debate clause, the protection of which extends beyond legislative acts themselves, would be undermined if references to past legislative acts of a member of Congress were admissible. STEVENS, J., joined by Stewart, J., concurring in part and dissenting in part, expressed the views that (1) the prosecution in a criminal case may be prevented from attempting to prove that a legislative act was performed by a member of Congress, but (2) exclusion of evidence that merely refers to a legislative act is not warranted when that evidence is not offered for the purpose of proving the legislative act itself. BRENNAN, J., dissenting, expressed the view that the indictment in the case at bar should have been dismissed altogether, since a corrupt agreement to perform legislative acts, even if provable without reference to the acts themselves, may not be the subject of a general conspiracy prosecution. POWELL, J., did not participate. HEADNOTES Classified to U.S. Supreme Court Digest, Lawyers' Edition Evidence § 865; United States § 9-speech or debate clause-evidence of legislative act-admissibility la, lb. Under the speech or debate clause of the United States Constitution (Art I, § 6), evidence of a legislative act of a member of Congress may not be introduced by the government in a prosecution of the member for bribery under 18 USCS § 201; references to past legislative acts of a member of Congress cannot be admitted into evidence without undermining values protected by the speech or debate clause, which affords protection beyond legislative acts themselves. Appeal and Error § 97-government appealsrestrictions upon evidence-speech or debate clause 2a, 2b. 18 USCS § 3731 authorizes an appeal by the government from a Federal District Court's order in a criminal trial restricting, under the speech and debate clause (Art I, § 6), the use of evidence concerning legislative acts of a member of Congress, where (1) there was an actual order of the District Court excluding the evidence, (2) proper certification was filed by a United States attorney, (3) the appeal was taken within 30 days, and (4) no constitutional barriers to the appeal existed. United States § 9-speech or debate clause prosecution by Executive Branch-libel 3a, 3b. A member of Congress can use the speech or debate clause (Art I, § 6) as a shield against prosecution by the Executive Branch, but only for utterances within the scope of legislative acts as defined in the holdings of the United States Supreme Court; the speech or debate clause is also a shield for libel. United States § 9-legislative acts-promise by member of Congress-future performance 4. Promises by a member of Congress to perform an act in the future are not legislative acts for purposes of the speech or debate clause (Art I, § 6); compacts regarding bribes may be shown in a criminal prosecution without impinging on the legislative function. Evidence § 859; United States § 9-speech or debate clause-admissibility of evidence 5. In determining the admissibility under the speech or debate clause of certain evidence in a criminal prosecution, the prosecutor's purpose in offering the evidence is not a factor, the clause prohibiting more than the offering of proof of a legislative act since it provides that members of Congress "shall not be questioned in any other place"; revealing information as to a legislative act-speaking or debating-to a jury would subject a member to being "questioned" in a place other than the House of Representatives or the Senate, thereby violating the explicit prohibition of the speech or debate clause; the concern of the United States Supreme Court with regard to the restrictions the clause places on the admission of evidence is with whether there is mention of a legislative act, not with the specificity of the refer ence. Evidence § 865; United States § 9-speech or debate clause-future acts 6. The protection of the speech or debate clause (Art I, § 6) extends only to an act that has already been performed, since a promise to deliver a speech, to vote, or to solicit other votes at some future date is not a "speech or debate", and a promise to introduce a bill is not a legislative act. United States § 9-speech or debate clause-waiver 7. Assuming without deciding that an individual member of Congress may waive the protection of the speech or debate clause against being prosecuted for a legislative act, such a waiver can be found only after explicit and unequivocal renunciation of the protection, the ordinary rules for determining the appropriate standard of waiver having no application in this setting; the conduct of a member of Congress in testifying before a grand jury and voluntarily providing evidence of certain legislative acts does not constitute an explicit and unequivocal waiver of immunity from prosecution for legislative acts, despite the member's apparent will ingness to waive the protection of the Fifth Amendment, the speech or debate clause providing a separate and distinct protection. United States § 9-speech or debate clause-waiverbribery statute 8. Assuming without deciding that Congress can constitutionally waive the protection of the speech or debate clause (Art I, § 6) for individual members, such a waiver can be shown only by an explicit and unequivocal expression, and therefore, since there is no evidence of such a waiver in 18 USCS § 201, that statute does not constitute an "institutional" waiver by Congress of the clause. SYLLABUS BY REPORTER OF DECISIONS During an investigation by several federal grand juries of reported political corruption, including allegations that aliens had paid money for the introduction of private bills in Congress to suspend the application of the immigration laws to allow the aliens to remain in the United States, respondent, then a Member of the House of Representatives, appeared voluntarily before the grand juries on 10 occasions. He testified as to his practices in introducing private immigration bills, voluntarily produced his files on numerous private bills, and provided copies of many such bills introduced on behalf of various aliens. Initially, respondent made no claim of privilege under the Fifth Amendment but eventually invoked that privilege as well as alluding to his privilege under the Speech of Debate Clause. Subsequently, respondent was indicted on charges of accepting money in return for being influenced in the performance of official acts, in violation of 18 USC § 201 [18 USCS § 201]. He moved in District Court to dismiss the indictment on the ground, inter alia, that it violated the Speech or Debate Clause. The District Court denied the motion, holding that the Clause did not require dismissal, but that the Government was precluded from introducing evidence of past legislative acts in any form. The Court of Appeals affirmed this evidentiary ruling, holding, contrary to the Government's arguments, that leg |