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be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment's guarantee. Id., at 659, 52 L Ed 2d 651, 97 S

Ct 2034. This is equally true for a claim that an indictment violates the fundamental guarantees of the Speech or Debate Clause. Once a motion to dismiss is denied there is nothing the Member can do under that Clause in the trial court to prevent the trial; but it is equally clear an appeal of the District Court ruling was available. Second, we noted:

[T]he very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i.e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. 3 Ibid. (Emphasis added; ci

tations omitted.) Abney concludes:

[T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. [T]his Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense. Id., at 660-661, 52 L Ed

2d 651, 97 S Ct 2034. That characterization of the purpose of the Double Jeopardy Clause echoed this Court's statement in Dom

3 It is true that Helstoski challenges the admissibility of evidence at his trail; that challenge, however, is raised only if the indictment is allowed to stand.

browski v. Eastland, 387 US 82, 85, 18 L Ed 2d 577, 87 S Ct 1425 (1967), that the Speech or Debate Clause was designed to protect Congressmen "not only from the consequences of litigation's results but also from the burden of defending themselves.”

Here the holding of Abney becomes highly relevant; by analogy, if a Member "is to avoid exposure to [being questioned for acts done in either House) and thereby enjoy the full protection of the Clause, his ... challenge to the indictment must be reviewable before . . . exposure [to trial] occurs.” Abney, supra, at 662, 52 L Ed 2d 651, 97 S Ct 2034.

Helstoski agrues that he should not be penalized for failing to predict our decision in Abney. But he cannot be viewed as being penalized since the controlling law of the Third Circuit was announced at the time of the District Court order denying dismissal of the indictment and our holding did not more than affirm the correctness of the law of that Circuit. See United States v. DeSilvio, 520 F2d 247, 248 n 2a (CA3), cert denied, 423 US 1015, 46 L Ed 2d 386, 96 S Ct 447 (1975). The relevance of the Abney-DeSilvio holdings, read in light of Dombrowski v. Eastland, supra, was predictable. We hold that if Helstoski wished to challenge the District Court's denial of his motion to dismiss the indictment, direct appeal to the Court of Appeals was the proper course under DeSilvio, supra. 4


MR. JUSTICE POWELL took no part in the consideration or decision of this case.


MR. JUSTICE BRENNAN, dissenting.

In today's decision, the Court professes to "agree that the guarantees of [the Speech or Debate) Clause are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require.”

4 If the petition for a writ of mandamus were treated as an appeal it would, of course, have been jurisdictionally out of time. Fed Rule App Proc 4.

Ante, at --, 61 L Ed 2d 36. Nonetheless, it refuses to hold mandmus an appropriate vehicle for assuring the protections of the Clause because "Helstoski could readily have secured review of the ruling complained of and all objectives now sought, by direct appeal to the Court of Appeals from the District Court order denying his motion to dismiss the indictment.” Ibid.

Mr. Helstoski may well be excused if he views the Court's holding as if it were a line out of Joseph Heller's Catch-22. He cannot utilize mandamujs because he should have sought a direct appeal. But he cannot seek a direct appeal, because that avenue is time-barred. Ante, at -- n 4, 61 L Ed 2d 37. Of course, the dilemma could have been short-circuited had Helstoski brought an immediate appeal at the time his motion for dismissal of the indictment was denied. Unfortunately, he could not have known that avenue of relief was available until today—for we have never before held that the denial of a claim that an indictment violates the Speech or Debate Clause is an exception to the longstanding rule forbidding interlocutory appeals.

interlocutory appeals.* And, as the Court holds, today it is too late, Values as “vitally important” as those guaranteed by the Speech or Debate Clause are entitled to more sensitive treatment.

* The Court makes the surprising assertion that Helstoski should have anticipated today's holding on the basis of a footnote in a 1975 Third Circuit opinion dealing with a different issue. (That opinion, like this Court's decision in Abney, was limited to the double jeopardy issue. Abney was announced far too late to have helped the defendant.) Although I agree with the Court's extension of the Abney principle from double jeopardy claims to those based upon the Speech or Debate Clause, I do not regard the extension as obvious. Nor, apparently, does the Government, as it carefully refrais from endorsing that view. See Brief for the United States 92. I certainly would not use it as a basis for penalizing a former Congressman in his assertion of a principle so "vitally important to ur system of government." Ante, at ---,61 L Ed 2d 36.

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