was introduced in Congress as recently as 1980. See note 4 supra. The Senator remains free to attempt to persuade his fellow legislators of the wisdom of his views. His colleagues, if so persuaded, are empowered to redress the alleged inadequacies of 12 U.S.C. § 263(a) of the act through amending legislation. Senator Riegle's attempt to prohibit voting by the five Reserve Bank members of the FOMC is yet another skirmish in the war over public versus private control of the Committee which has been waged in the legislative arena since 1933. It would be unwise to permit the federal courts to become a higher legislature where a congressman who has failed to persuade his colleagues can always renew the battle.

Assuming that the current procedure for constituting the FOMC may be unconstitutional, we must nevertheless weigh the danger of permitting such a statute to stand against two countervailing concerns: (1) the potential for misuse of the judicial system inherent in hearing a case brought by this particular plaintiff, who, because of his congressional status, has adequate collegial remedies; and (2) the unwarranted interference in the legislative process which judicial action would represent at this time. We conclude that rendering a decision on the merits in this case would pose a greater threat to the constitutional system than would the principled exercise of judicial restraint. As Judge Gesell perceptively recognized, we should not "improperly interfere with the legislative process.' 84 F.R.D., supra at 116.

We hold that Senator Riegle has standing to bring this action but exercise our equitable discretion to dismiss the case on the ground that judicial action would improperly interfere with the legislative process.

The judgment dismissing the complaint is

Affirmed.

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION, No. 81 CR 269

UNITED STATES OF AMERICA, PLAINTIFF,

V.

ALLEN M. DORFMAN, ROY L. WILLIAMS, JOSEPH LOMBARDO, THOMAS F. O'MALLEY, AND ANDREW G. MASSA, ALSO KNOW AS AMOS MASSA, DEFENDANTS.

Transcript of proceedings had in the above-entitled cause before the Honorable Prentice H. Marshall, one of the Judges of said Court, in his courtroom in the United States Courthouse, 219 South Dearborn Street, Chicago, Illinois 60604, on Wednesday, July 1, 1981, at 10:15 o'clock a.m.

Present:

Hon. Gregory C. Jones, United States Attorney, Northern
District of Illinois,

By: Douglas P. Roller, Esq., and

Appearances:

Mark Vogel, Esq.,

Chicago Strike Force, on behalf of the United States of
America;

Albert E. Jenner, Jr., Esq., and Michael J. Rovell, Esq., on behalf of Defendant Dorfman;

Harry J. Busch, Esq., and Sherman G. Magidson, Esq., on
behalf of Defendant Lombardo;

George J. Corsirilos, Esq., and James R. Streicker, Esq., and
Robert M. Stephenson, Esq., on behalf of Defendant Massa;
Thomas A. Wadden, Esq., on behalf of Defendant Williams;
William Hundley, Esq., on behalf of Defendant O'Malley.

Also Present:

Michale Davidson, Esq., Charles Teefer, Esq., Wilson Abney,
Esq.

The CLERK. 81 CR 269, United States vs. Allen Dorfman et al., for rulings and defendants' joint motion for production.

The COURT. Good morning, everybody.

Mr. JENNER. Good morning, your Honor.

Mr. ROVELL. Good morning, your Honor.

Mr. ROLLER. Your Honor, before we proceed, I would like to introduce counsel who are here on behalf of the Senate to the Court. The COURT. Splendid.

Mr. ROLLER. Mr. Michael Davidson, who is counsel to the United States Senate.

Mr. Teefer, Charles Teefer, who is deputy counsel to the United States Senate, and Mr. Wilson Abney, standing up there, who is counsel to the Senate Ethics Committee.

The COURT. Right. Glad to have you gentlemen. Now, we have several items. Let's see if we can get rid of what I assume are the less controversial ones first, and that's the Government's two motions which were noticed for today, one in which it requests per

mission under Rule 6(e) to disclose certain Grand Jury testimony, and an FBI memorandum to the defendants. I assume there is no objection to that.

Mr. COTSIRILOS: None on behalf of the defendant Massa, your Honor.

Mr. JENNER. None on behalf on the defendant Dorfman your Honor.

Mr. HUNDLEY. None.

The COURT. Okay.

Mr. ROLLER. I assume none of the defendants object then.

The COURT. That's my assumption.

Mr. ROLLER. I didn't hear from them all.

The COURT. Now, then, as a concomitant, I suppose, of that order, as I understand this motion now, is a motion by the Government to enlarge the protective order heretofore entered in this case to embrace the testimony and FBI memorandum which will now be disclosed.

Is that the essence of the motion, Mr. Roller?

Mr. ROLLER. That's correct, your Honor.

The COURT. Any objection to that?
Mr. COTSIRILOS. No, your Honor.
Mr. HUNDLEY. No objection.

Mr. JENNER. None, your Honor.

Mr. ROLLER. While we are on those items, your Honor, there is an additional statement of the defendant Williams that was taken by a local law enforcement agency that we discovered, that we are turning over to Mr. Wadden today.

The only request that I would have, if Mr. Wadden would agree on the record today that that statement will be covered by the protective order, previously entered by the Court also.

Mr. WADDEN. Agreed, your Honor.

The COURT. Okay.

Rita, those are the two orders now that I have entered.

Mr. ROVELL. Your Honor, may I ask if the March 25, 1979 conversation, the 302 report, was intercepted as a result of one of the Kansas City orders? Mr. Roller?

Mr. ROLLER. It was not.

The COURT. Okay.

Now, I think probably the next order of business should bewell, I have here a Government's report of compliance with local rule 2.04, which was just filed.

No action is required on my part with respect to that.

Now, I think then in the order of business we should turn our attention to the matter which is set for ruling today, and then we will double back and take up the defendants' motions for production of additional information.

Then I also have a letter here-I don't know whether that's on the agends or not-a letter to Mr. Roller signed by Mr. Rovell with respect to the Kansas City situation.

But let's take up first what has been characterized as the defendants' motion for protective order.

First, I want to thank all of the lawyers for briefing the matter as well and as expeditiously as you have and I particularly want to

thank the Senate Committee on Ethics for appearing as amicus curiae.

Their brief was helpful, and I recognize that it is an act of cooperation when one branch of the government participates in the activities of another branch of government, and I am grateful for it.

I have not had the opportunity to write anything on the subject, but I will try and articulate for you briefly my thoughts.

Incidentally, so that we don't forget it, I also want to take up with you, after we rule on this motion, the question of the earlier Grand Jury disclosure proceedings before Judge Parsons.

I have reached the conclusion that the defendants' motion for a protective order should be denied.

My rationale is along these lines:

First of all, under Section 2510 of the subject statute, I think it's clear that Messrs. Roller and Shapiro and the FBI Agents and other with whom they have been working qualify as law enforcement and investigative agents of the Government under Section 2510.

Section 2517 tells us that those Agents may disclose to another investigative officer materials obtained lawfully through an electronic surveillance or so-called wiretap.

I believe that the Senate Ethics Committee and its staff fit within the definition of investigative officers as defined in Section 2510.

I believe that they are authorized to investigate offenses enumerated in the statute, particularly as those offenses are alleged to have been committed by or involve a member of the United States Senate.

In addition to that, I believe that the amendments to Section 2517(3) authorize the disclosure.

It is my understanding that Mr. Roller and his colleagues have been served with a subpoena to produce the product of the so-called surveillance before the Senate Ethics Committee, and that Section 2517(3) authorizes that disclosure and testimony in any proceeding held under authority of the United States.

I am not persuaded by the defendants' argument that the 1970 amendment to the Act are limited to civil litigation proceedings.

The language of the statute and the legislative history of the statute discloses that first the limitation "criminal" was removed from it, then the limitation "courts" was removed from it and we are left with very broad language that the disclosure may be made in testimony, in any proceeding held under the authority of the United States, and the Senate Ethics Committee proceedings are such a proceeding.

The long and the short of it is, as I see it-and I see no need to get into some of the constitutional arguments that have been raised-I believe that but for other arguments that I will address in a moment, the disclosure pursuant to subpoena served by the Ethics Committee upon Mr. Roller and his colleagues would clearly fall within the permitted scope of the statute.

The next argument is made however that Rule 6(e), and Grand Jury secrecy controls in this situation.

That matter has been briefed very thoroughly, and it includes in its briefing the decision by the Court of Appeals for this Circuit de

92-687 0 - 82 - 27

cided just a week ago in the appeal of James Baggett re the 1975 and 1977 Special Grand Juries for this District, and I have considered that decision.

I believe, however, that the materials with which we are here concerned have an independent evidentiary existence, and the fact that they have been utilized before the Grand Jury of this District in its investigation does not render them subject to the strictures of Rule 6.

That is to say, disclosure of exhibits which have been presented to the Grand Jury but have not been produced by third persons as a result of Grand Jury process, which was the case with respect to certain of the documents in the Baggett case, in the memorandum that summarized those documents-that is not the case here, and it is my holding that these exhibits, these tapes, are not subject to the strictures of Rule 6.

The defendants next express concern-and I share their concern in a general manner, with respect to the generalization of adverse tainting, pretrial publicity, which will render their ability to obtain a fair and impartial jury problematic.

First of all, it appears from the submissions that have been made in connection with this case, which follows a lead utilized in the investigation of Senator Williams, and with respect to certain commitments to which I will have more to say in a moment, which the Senate Ethics Committee has made in proceedings in this Court with respect to disclosure of Grand Jury information, that this information in the first instance will be maintained by the Senate Ethics Committee in confidence and in executive session.

And the Senate Ethics Committee has committed itself in its negotiations with the Justice Department to disclose this information without notice to the Justice Department.

Indeed, in a resolution adopted by the Committee, with full knowledge of the proceedings which are now pending here, which were initiated on June 5th of this year, the resolution adopted on the 16th of June assures the Justice Department that no public disclosure will be made without five days' notice to the Justice Department, and if the Justice Department objects, then an additional ten days' period will pass.

And it is expressly acknowledged, as I read the materials that have been submitted to me, that during that ten-day period of time, if an impasse is reached between Justice and the Senate Ethics Committee, that Justice will have the opportunity to initiate appropriate proceedings in a court of competent jurisdiction to inquire into the matter of disclosure.

Now, I recognize that there are some speech and debate clause problems, but on its face, at least, the potential availability of a judicial remedy is acknowledged.

But more important than that, the Senate of the United States has a responsibility under the Constitution peculiar to itself, and that is to the responsibility of policing its own members.

It is the only body that can do that with respect to membership qua membership in the United States Senate, and the risk of pretrial publicity here-while I do not take it lightly-is not, in my judgment, a sufficient ground to deny to the Senate in confidence the information which it seeks.