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public office is not ripe for adjudication if there is a distinct likelihood that the Federal Communications Commission will not seek to penalize a broadcaster for violating its terms. (2) When no attempt is made by the defendant Executive branch agency, in this case the FCC, to defend the challenged statute, no genuine adversariness of interests exists and therefore there is no case or controversy under Article III of the U.S. Constitution. Issue raised on remand. - Is 47 U.S.C. $ 399, which provides that no noncommercial educational broadcasting station which receives government funding may engage in editorializing and no noncommercial educational broadcasting station may support or oppose any candidate for political office, unconstitutional as violative of the First and Fifth Amendments to the U.S. Constitution? [This case in pending in U.S. District Court, the ripeness and adversariness holdings having been vacated after remand from the U.S. Court of Appeals for the 9th Circuit.) McClure v. Reagan (formerly Carter), 513 F. Supp. 265 (D. Idaho
1981), affirmed, 102 S. Ct. 559 (1981) (1) A U.S. Senator, suing in either his individual capacity or his official capacity as a Senator, lacks standing to challenge the validity of the appointment of a Federal judge. (2) A Federal jurisdictional statute which specifically authorizes Members of Congress to challenge in court the legality of judicial appointments cannot confer standing on a Member who, absent the statute, would have no standing to sue. McSurely v. McAdams (formerly McClellan), 535 F.2d 1277 (D.C.
Cir. 1976), cert, dismissed, 438 U.S. 189 (1978) (1) A Member of Congress and his aides are not immune under the Speech or Debate Clause from liability in a private suit for damages in which the plaintiff alleges that private papers and documents illegally taken from the plaintiff's home by state officials and transported to Washington by a Senate investigator were disseminated outside of Congress. (2) Even though material comes to a Congressional committee by means that are unlawful or otherwise subject to judicial inquiry, the subsequent use of that material by the committee in the course of official business is privileged legislative activity. [This case is pending in U.S. District Court, although these holdings are final.] Murray v. Morton, 505 F. Supp. 144 (D.D.C. 1981)
Taxpayer plaintiffs who allege no other interest, apart from their views with respect to religion, to distinguish themselves from any other taxpayers have no standing to challenge the authorization and payment of salaries and expenses for the Chaplains of the House and Senate, particularly in view of the constitutional authority of Congress to choose its officers and make its internal rules. [This case is on appeal in the U.S. Court of Appeals for the District of Columbia Circuit.)
Pacific Legal Foundation v. Watt and Mountain States Legal Foun
dation v. Watt, 529 F. Supp. 982 (D. Mont. 1981) As a matter of statutory construction, section 204(e) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. $$ 1701 et seq.) properly authorizes the House Committee on Interior and Insular Affairs and the Senate Committee on Energy and Natural Resources to determine that an “emergency situation" exists on certain Federal lands and on that basis to direct the Secretary of the Interior to withdraw those lands from the operation of mineral leasing laws, although the Secretary alone has the authority to set the terms and duration of the withdrawal, and can revoke it after a reasonable time. [This case is pending in U.S. District Court.] Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir.
1981) cert. denied, 102 S. Ct. 636 (1981) A suit brought by a Member of Congress will be dismissed if: (1) the Member lacks standing under the traditional standing tests; or (2) the Member has standing but could obtain legislative redress from his colleagues and a similar action could be brought by a private plaintiff. Senate Permanent Subcommittee on Investigations v. Cammisano,
655 F.2d 1232 (D.C. Cir. 1981), cert. denied, 102 S. Ct. 641
(1981) (1) The civil contempt mechanism available pursuant to the Ethics in Government Act of 1978 (28 U.S.C. $ 1364) when a witness, properly immunized, refuses to comply with a validly issued Senate committee or subcommittee subpoena, is constitutional. (2) An immunity order, under which a defendant is granted use immunity and compelled to answer questions of a Senate subcommittee, is not rendered invalid by virtue of the fact that it is issued before the defendant appears before the Congressional body. (3) It is not unlawful for a district court to order a defendant's incarceration for civil contempt to interrupt the sentence he is currently serving for a criminal offense. (4) The period of confinement for civil contempt may not exceed the period in which the committee or subcommittee continues to certify an interest in the testimony sought and will end at the adjournment of the current Congress. (This case is pending in the U.S. Court of Appeals for the District of Columbia Circuit, although these holdings are final.] Tavoulareas v. Washington Post, 93 F.R.D. 11 (D.D.C. 1981) and
527 F. Supp. 767 (D.D.C. 1981) (1) The Speech or Debate Clause confers on legislators immunity from judicial process requiring them to answer questions relating to the performance of their legislative duties, and the privilege applies to Congressional staff as well as to Members of Congress. (2) The Clause does not bar testimony relating to the dissemination of information outside Congress since such dissemination is beyond the legitimate legislative sphere. (3) The Clause does bar inquiry into the motives of Congressional staff members in conducting an investigation, although inquiry into the apparent motivation of reporters inbringing the matter to the staff's attention would not be
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similarly precluded. (4) The Clause prohibits inquiry about investigative information gathering efforts by Congressional staff, whether the investigation is characterized as "formal" or "informal”. (5) The Clause prohibits the use of judicial process to inquire of a third party noncongressional witness about the legislative acts of a legislator or his aides. (6) Insofar as newspaper reporters or other individuals are voluntary, unsolicited sources of information for Congressional staff members regarding matters in dispute in a libel action, the Clause does not bar questioning of the staff members concerning the nature and content of those voluntary communications or the purpose or intent behind them. (7) While the active acquisition of information by Congressional staff is protected by the Clause, the privilege extends only to the point at which the staff ceases to be an active catalyst that induces the provision of particular information to Congress and becomes, instead, the passive recipient of information provided by an outside source at the source's own election. (8) The Clause prohibits questioning concerning information provided to staff members in response to a Congressional telephone call or letter, an interview prearranged by a staff member, a Congressional promise of confidentiality, or a Congressional subpoena. (9) Although the Clause does not bar testimony regarding the dissemination of information outside of Congress, or about the arrangements made to disseminate information, it does prohibit questioning about the interchange of documents or information among various Congressional committees or staffs. (10) Although the Clause does not bar questioning to identify any documents disseminated outside Congress, it does prohibit inquiry regarding the preparation of any Congressional documents, including questions about the basis for conclusions reached in the documents, the evidence relied upon or otherwise used to prepare the documents, or the sources who provided evidence relied upon or otherwise used in the documents. (11) The Clause bars testimony about the structure of various Congressional committee staffs and the subject matter of any committee or staff investigations. United States v. Carney, 665 F.2d 1064 (D.C. Cir. 1981), cert. denied,
454 U.S. 1081 (1981) (1) Even if some evidence presented to a grand jury violates the Speech or Debate Clause of the U.S. Constitution, dismissal of the grand jury indictment is not proper; rather, only those parts of the indictment which are facially invalid should be dismissed on Speech or Debate Clause grounds. (2) A district court ruling denying a motion to dismiss an indictment on Speech or Debate Clause grounds is immediately appealable. (3) A district court ruling denying a motion to exclude from use at trial certain evidence purportedly covered by the Speech or Debate Clause is not a final decision and is therefore unappealable. (4) A district court ruling denying a motion to permit inspection of grand jury minutes to determine whether the grand jury heard evidence in violation of the Speech or Debate Clause is not a final decision and is therefore unappealable.
United States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980)
(1) Even though no statutory cause of action exists, the Government has an implied Federal common law civil remedy for a Federal official's alleged fraud involving receipt of fees in violation of a criminal statute. (2) The Executive and Judicial branches can determine whether a Member's phone calls have been properly charged to the House of Representatives, since calls which are not strictly official are incidental to the exercise of central legislative functions and therefore are not legislative acts protected by the Speech or Debate Clause. [This case is pending in U.S. District Court.] United States v. Jenrette (D.D.C.)
Issues raised.-(1) May Government undercover agents approach a Member of Congress for the purpose of enticing him into criminal activity despite the fact that the Government had no reason to believe that the Member was engaged in criminal activity in the past? (2) Under what circumstances may it be said that Government agents, in planning and implementing an undercover investigation designed to gather evidence of criminal activity, became so involved in the criminal activity they were investigating that any prosecution based on evidence gathered during the investigation would be barred as a matter of law. [This case is pending in U.S., District Court.) United States v. Kelly (Not Reported) (D.D.C. 1980)
(1) An indictment against a Member of Congress will not be dismissed as violative of the Speech or Debate Clause if the indicted Member fails to show either: (a) that documents and materials protected by the Clause were reviewed by the grand jury and were a substantial factor underlying its decision to indict; or (b) that the grand jury lacked sufficient competent evidence to establish probable cause to indict. (2) That portion of the bribery statute (18 U.S.C. 201(c), which prohibits a public official from soliciting any. thing of value in return for his promise to perform an “official act” does not require the Government to prove that the official act was capable of being performed. (3) The Punishment Clause of the U.S. Constitution, which provides that each house of Congress may punish its Members for disorderly behavior, does not deprive the judiciary of jurisdiction to try a Member of Congress on charges that he used his official position for illegal purposes. Remaining issue raised.-Under what circumstances may it be said that Government agents, in planning and implementing an undercover investigation designed to gather evidence on criminal activity, became so involved in the criminal activity they were investigating that any prosecution based on evidence gathered during the investigation would be barred as a matter of law? [This case is pending in U.S. District Court.) United States v. Lederer (criminal) (Not Reported) (E.D.N.Y. 1980
and 1981) (1) The fact that Government officials, in disclosing information regarding an ongoing criminal investigation to the press, may have acted improperly or even illegally does not necessarily constitute grounds for dismissal of an indictment resulting from the investigation. (2) The dismissal of an indictment on the ground of prejudicial pre-indictment publicity will not be granted unless the defendant shows that he suffered actual prejudice as a result of the publicity. (3) Whenever the issue of entrapment is raised by a defendant, the ultimante issue is whether the defendant was predisposed to commit the crime; the question of guilt or innocence does not depend on whether a Government agent provided the impetus for the crime. (4) The Constitution does not require that the Government have reasonable suspicion that a Member of Congress will accept a bribe before offering that Member a bribe. (5) A Member of Congress cannot defend his acceptance of a bribe on the ground that the amount of bribe money offered was so exorbitant that it constituted an unfair temptation. (6) The use of “sting” operations to uncover corruption in public office is not improper. (7) The fact that Government agents may have violated statutes, rules, or guidelines during the course of an investigation does not require the dismissal of an indictment unless the defendant shows that the violation was of a constitutional nature and that it resulted in some adverse effect or prejudice to him. (8) Payments to informants, which are contingent upon the successful prosecution of those with whom they deal, do not require dismisssal of an indictment. (9) The amount of money paid to a Government informant is not a proper subject of judicial review. (10) The conduct of Government agents during the course of an undercover investigation will not be considered so outrageous as to bar prosecution under the Due Process Clause of the individual under investigation was given the opportunity to say “No” to the agents' criminal proposal, or the extent of Government involvement was equal to or less than that in Hampton v. United States, 425 U.S. 484 (1976). [This case is on appeal in the U.S. Court of Appeals for the 2d Circuit). United States v. Lederer (civil) (D.D.C.)
Issue raised.-Does the public policy which prohibits the enforcement of unlawful contracts necessitate the dismissal of a complaint which alleges that the defendant Congressman entered into an agreement with Government undercover officials to accept a bribe? [This case is pending in U.S. District Court.) United States v. Murphy, and United States v. Thompson (criminal)
[Not reported) (E.D.N.Y. 1980 and 1981) (1) The fact that Government officials, in disclosing information regarding an ongoing criminal investigation to the press, may have acted improperly or even illegally does not necessarily constitute a ground for dismissal of an indictment resulting from the investigation. (2) The dismissal of an indictment on the ground of prejudicial pre-indictment publicity will not be granted unless the defendant shows that he suffered actual prejudice as a result of the publicity. (3) Whenever the issue of entrapment is raised by a defendant, the ultimate issue is whether the defendant was predisposed to commit the crime; the question of guilt or innocence does not depend on whether a Government agent provided the impetus for the crime. (4) The Constitution does not require that the Government have