relating to the Department of Agriculture's farmers' bulletins publications program. On September 7, 1977, the National Records Center, Accession and Disposal Branch, General Services Administration filed an objection to the production, by September 14, 1977, of the various documents as specified in the subpoena duces tecum. An order was filed on September 23, 1977, directing that the material submitted to the court for in camera inspection as authorized by S. Res. 136, 95th Cong., 1st Sess. (1977), be retained by the court for 60 days pending appeal and that, if no appeal has been noted within 60 days, the material be released to Common Cause. Notices of appeal to the Court of Appeals for the District of Columbia Circuit and to the U.S. Supreme Court by Peter Stavrianos and the other Senate employees, nonparty deponents, of the order, were filed on October 21, 1977. Plaintiffs moved the court on October 26, 1977 to compel the 100 Senate Administrative Assistants to produce documents. On November 15, 1977, the Senate agreed to S. Res. 325, 95th Congress, 1st Sess. (1977) which authorized the counsel for the subpoenaed Senate employees to furnish the material for use in the proceeding without restriction to in camera use, but subject to the protective provisions in the previously approved stipulation. The resolution also authorized the counsel for the subpoenaed Senate employees to file for leave to intervene on behalf of the Senate in order to protect and defend the duties, responsibilities, rights and privileges of the Senate under Article I of the Constitution. A memorandum in opposition to plaintiffs' motion to compel the 100 Senate Administrative Assistants to produce documents was filed on November 17, 1977 by the 100 Senate Administrative Assistants. On November 29, 1977 the Senate employee deponents filed a motion to withdraw their notice of appeal. On the same day, an order was filed granting the motion to withdraw the separate notices of appeal to the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit. The motion of plaintiffs to compel the 100 Senate Administrative Assistants to produce documents was argued and granted on November 29, 1977 and an order granting the motion was filed on December 19, 1977. Status.-The case is pending before the three-judge court in the U.S. District Court for the District of Columbia. The full text of the memorandum and order of February 10, 1975, was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1975. The full text of the court's "Memorandum and Order" of July 30, 1975, the "Stipulation and Protective Order Regarding Production of Information and Documents By Certain Employees of the House of Representatives," filed on March 1, 1976, and the "Order" of the court filed on March 1, 1976, were printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976. The full texts of the orders of September 23, 1977 and December 23, 1977 are printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, Part 3, December 31, 1977. In re Grand Jury Investigation into Possible Violations of Title 18, United States Code, Sections 201, 371, 1962, 1951, 1503, 1343 and 1341 No. 78-1755 (Third Cir.) This case arose out of a motion filed by the Government in the U.S. District Court for the Eastern District of Pennsylvania for the production of congressional records from the Clerk of the U.S. House of Representatives, Edmund L. Henshaw. (Misc. No. 78-142). The records sought consisted of telephone toll records of all telephone calls from or charged to the Office of then-Representative Joshua Eilberg for the years 1973 through and including March 2, 1978. The motion was granted on March 6, 1978 by the District Court which issued written findings that the documents sought were necessary, material and relevant to a pending grand jury investigation. The Clerk of the House was ordered to produce the documents before the grand jury on March 16, 1978. Congressman Eilberg filed a motion on March 15, 1978 for leave to intervene and for an order quashing the subpoena duces tecum. District Judge Fullam issued a memorandum and order on May 5, 1978 granting Representative Eilberg's motion to intervene and denying his motion to quash. On May 16, 1978, Congressman Eilberg filed a motion for reconsideration of his motion to quash. On June 2, 1978 a memorandum and order was filed in the District Court denying the motion for reconsideration, but ordering that no evidence concerning the contents of telephone conversations reflected in the subpoenaed records be presented to the Grand Jury except with approval of the Court after in camera proceedings. Congressman Eilberg filed a notice of appeal on June 9, 1978. On June 30, 1978, Representative Eilberg filed his appellant's brief. The Government filed its brief as appellee on July 24, 1978. On August 3, 1978, the Clerk of the House moved to file out of time a brief as amicus curiae. The motion was granted and the brief was filed on August 10, 1978. The appeal was argued on September 7, 1978. On September 8, 1978, Philadelphia Newspapers, Inc. and James Smith petitioned for leave to intervene and for access to District Court records which had been sealed by the District Court and the Court of Appeals. The Clerk of the House filed a supplemental brief on September 12, 1978. On September 13, 1978, the Government filed an answer to the petition of Philadelphia Newspapers, Inc. and Mr. Smith. Supplemental briefs were filed by Congressman Eilberg and the Government on September 15, 1978, and September 19, 1978, respectively. On October 20, 1978, the Court of Appeals issued an opinion denying the motion of Philadelphia Newspapers, Inc. and Mr. Smith for leave to intervene and for access to sealed court records. The opinion stated that any challenge to the orders sealing the District Court records should, in the first instance, be addressed to that court. The Court of Appeals issued its opinion in regard to Congressman Eilberg's appeal on October 20, 1978. The court held that the District Court had properly declined to quash the subpoena, but vacated the order appealed from and remanded the case to the District Court for proceedings consistent with its opinion. The court dealt in turn with each of the three grounds on which Congressman Eilberg had sought to quash the subpoena: (1) Insufficient compliance with House Resolution 10 (95 Cong., 1st sess.); (2) insufficient compliance with the Third Circuit's decision in Schofield, In re Grand Jury Proceedings (Schofield D, 486 F.2d 85 (3d Cir. 1973); In re Grand Jury Proceedings (Schofield II, 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975); (3) the Speech or Debate Clause. House Resolution No. 10 states: Whereas, by the privileges of this House no evidence of a documentary character under the control and in the possession of the House of Representatives can by the mandate of process of the ordinary courts of justice be taken from such control or possession except by its permission: Therefore, be it Resolved, That when it appears by the order of any court in the United States or a judge thereof, or of any legal officer charged with the administration of the orders of such court or judge, that documentary evidence in the possession and under the control of the House is needful for use in any court of justice or before any judge or such legal officer, for the promotion of justice, this House will take such action thereon as will promote the ends of justice consistently with the privileges and rights of this House; and be it further Resolved, That during the Ninety-fifth Congress, when a subpena or other order for the production or disclosure of information is by the due process of any court in the United States service upon any Member, officer, or employee of the House of Representatives, directing appearance as a witness before the said court at any time and the production of certain and sundry papers in the possession and under the control of the House of Representatives, that any such Member, officer, or employee of the House, after notifying the Speaker, is authorized to appear before said court at the place and time named in any such subpena or order, but no papers or documents in the possession or under the control of the House of Representatives shall be produced in response thereto; and be it further Resolved, That after the Speaker has been notified by the Member, officer, or employee that a proper court has determined upon the materiality and relevancy of specific papers or documents called for in the subpena or other order, then said court through any of its officers or agents shall have full permission to attend with all proper parties to the proceedings before said court and at a place under the orders and control of the House of Representatives and take copies of the said documents or papers and the Clerk of the House is authorized to supply certified copies of The court first turned to the question of whether there had been sufficient compliance with the provisions of H. Res. 10. The opinion noted that although the Clerk had suggested in his amicus brief that the District Court's finding that the subpoenaed material was relevant to the grand jury's investigation was insufficiently specific to meet the materiality requirement of H. Res. 10, he had not resisted the subpoena, but rather had stood ready to comply. The court declared that since the Clerk had raised no objection to any lack of specificity in the subpoena at the District Court level, there was no occasion for the District Court to consider and no reason for the court of appeals to rule upon the question of whether H. Res. 10 requires "a more specific governmental showing, and judicial finding of relevancy of the subpoenaed materials than was made and found here." (In Re Grand Jury Investigation into Possible Violations of Title 18, United States Code Sections 207, 371, 1962, 1951, 1503, 1343 and 1341; Slip Opinion at 5) In a further discussion of H. Res. 10, the appeals court observed: It seems clear from H.R. 10 that the House believes it has the power to resist a valid subpoena from a court in some instances. Possibly it would rest its power to do so on Article I § 5, cl. 3, since the resolution refers to "the privileges and rights of this House." Textually, at least, the resolution does not seem aimed at vindication of the Speech or Debate Clause privilege of House members. That privilege, although of great institutional interest to the House as a whole, is also personal to each member. Whether it could be narrowed by Congressional action to the member's detriment is a question carefully reserved in United States v. Brewster, 408 U.S. 501, 529 n.18 (1972) and United States v. Johnson, 383 U.S. 169, 185 (1966). Whether it could be enlarged by legislation, or more particularly by the nonstatutory action of a single house, so as to place beyond the subpoena power of the judicial branch matters not actually within the Speech or Debate Clause privilege “Each House shall keep a Journal of its Proceedings, and from time to time publish the same excepting such Parts as may in their Judgment require Secrecy is an open question of considerable delicacy. See United Turning to the question of whether the Schofield rule was applicable to this action, the Court of Appeals noted that the rule had thus far been applied only for the benefit of persons subpoenaed to appear before the grand jury, not for intervenors. The court found no reason to consider whether an intervenor who suffers injury from the improper use of a grand jury subpoena addressed to a third party might successfully demand that the government make a preliminary showing by affidavit that each subpoenaed item is relevant to an investigation being conducted by a grand jury, properly within its jurisdiction, and not sought for another purpose as by Schofield since it concluded that Congressman Eilberg could not on the present record derive any benefit from the Schofield rule even if he fell within its sphere. The Court of Appeals noted that since he could point to no prejudice from his failure to see the affidavit and did not suggest that he could have put in issue the bona fides of the grand jury investigation. As to the question of whether records of Congressman Eilberg's phone calls were protected from disclosure by the Speech or Debate Clause, the opinion of the Court of Appeals approached the Congressman's Speech or Debate Clause claim by stating as a preliminary matter that the case law held that a legislator asserting an invasion of the Speech or Debate Clause privilege by means of a grand jury_subpoena to a third party may intervene and oppose such use. The Court of Appeals agreed with the contention of Representative Eilberg and the Clerk of the House that the telephone is the single most important and often used instrument of communication in the House. The Court of Appeals first noted that many of the uses of the telephone by Congressmen are plainly integral to the deliberative or communicative processes of the House, and as such are legislative acts falling within the scope of the Speech or Debate Clause by even the narrowest construction of that clause. Considering the holding of Gravel v. United States, to be the most restrictive reading of the Speech or Debate Clause, the Court of Appeals observed that Gravel did not decide the question of whether use against a legislator of his own or his staff's communications in preparation for legislation may be permitted under the Speech or Debate Clause, although Gravel apparently permits inquiry into such communications when relevant to the investigation of possible third party crimes. Hence, the opinion of the Court of |