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sage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Eastland v. United States Servicemen's Fund, 421 U.S. at 504, 95 S.Ct. at 1821 (quoting Gravel v. United States, 408 U.S. at 625, 92 S.Ct. at 2627). As recognized by this Circuit in the en banc decision in McSurely, even the relatively expansive protective shield created by the speech or debate clause has "finite limits.” 553 F.2d at 1287. The considered judgment of the Court is that the finite limits of the speech or debate clause's shield, with regard to the information-gathering function of Congress, is the point at which congressional staff cease to be the active catalyst that induces the provision of particular information to Congress and become, instead, the passive recipient of information provided by an outside source at the source's own election. As used in prior decisions, the term “acquisition” connotes some active role by Congress in the process by which information is garnered from various sources. Absent some active intervention by a congressional staff member inducing the provision of information in some manner, therefore, the Court cannot conclude that the unilateral act of providing Congress with data, however useful to Congress, constitutes the "acquisition” of information by Congress or its staff.

[5, 6] In sum, the Court will order congressional deponents to answer any questions pertaining to the voluntary, unilateral submission (as opposed to acquisition) of information to congressional staff by reporters or by other sources. The Court will note for the benefit of the parties, however, that it does not intend a niggardly definition of the term “acquisition” as used in this opinion to denote protected information-gathering activities. Rather, if the (681) particular source provided information to House staff in response to a congressional telephone call or letter, an interview prearranged by a congressional staff member, a congressional promise of confidentiality, or, of course, a House subpoena, the material falls within the definition of information "acquired" pursuant to Congress' investigatory power. On the one hand, therefore, questions concerning information acquired by these, or similar, means are impermissible and need not be answered by congressional deponents. On the other hand, questions that seek to elicit information about contacts or communications initiated by noncongressional sources, including questions about any discussions that ensued between the source and a congressional staff member, are proper and shall be answered by these deponents.3

The Court recognizes that, in practice, the line between contacts initiated by Congress and contacts initiated by a source may be difficult to draw. But the necessity for line-drawing, however difficult, is unavoidable in some cases, including the present one. Consequently, the parties are directed to adhere to the guidelines of this opinion and, if any future disputes arise over the meaning of this opinion, to use their best efforts to resolve the dispute without further intervention by the Court.

: For example, the question beginning on page 20, line 10 of the transcript of the November 9th Schooler deposition is permissible under the guidelines of this opinion. In comparison, the question beginning on page 19, line 10, is permissble only to the extent Mr. Tyler initiated any of the contacts.

(2) Dissemination of information by congressional staff

(7, 8] Although the Court in its September 10th memorandum ruled questions regarding the dissemination of information by Congress, including attempts to induce the dissemination of information by Congress, outside the ambit of the speech or debate privilege; congressional deponents have objected to any questions that pertain to the dissemination of information by any congressional staff member other than the particular member being deposed. The Court finds congressional deponents' interpretation of the import of the September 10th memorandum far too limited. As noted in that memorandum, "the act of disseminating information outside of Congress is beyond the legitimate sphere and therefore outside of the protections afforded by the speech or debate clause." Memorandum Opinion at 10, Tavoulareas v. Piro, Civil Action Nos. 80-2387, 80-3032 (D.D.C. Sept. 10, 1981) (citing Doe v. McMillan, 412 U.S. 306, 317, 93 S.Ct. 2018, 2027, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. at 625, 92 S.Ct., at 2627, and McSurely v. McClellan, 521 F.2d at 1039). If the act of disseminating information outside of Congress is unprotected, the Court perceives no basis for limiting the questioning of congressional deponents to their own acts of dissemination. Rather, congressional deponents shall answer questions pertaining to the dissemination of information outside of Congress, including the dissemination of information, or arrangements to disseminate information, to any Washington Post reporter or to any executive agency.4 The Supreme Court indicated approval of this line of questioning in the Gravel decision when it held that a Senate aide could be required to answer "questions relating to his or the Senator's arrangements, if any, with respect to (the) republication" of documents outside of Congress. Gravel v. United States, 408 U.S. at 628, 92 S.Ct. at 2628 (referring to republication of The Pentagon Papers). Accordingly, congressional deponents shall respond to questions dealing with dissemination outside Congress, but need not answer questions dealing with the interchange of documents or information (682) amont various congressional committees or staffs.5 (3) Identification of documents disseminated outside of Congress

[9] The Court will order the congressional deponents to identify any documents disseminated outside of Congress because the mere identification of these documents does not implicate any legislative function. The Court will sustain, however, the objections of counsel for the Clerk of the House to any questions that seek to elicit information regarding the preparation of any congressional documents, including any questions about the bases 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. Such questions attempts

* The Court reads the caselaw regarding the unprotected status of disseminations of information outside Congress to include disseminations to federal agencies. See Gravel v. United States, 408 U.S. at 625, 92 S.Ct. at 2627 (citing United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966)).

For example, the questions on pages 31-34 of the transcript of the Schooler deposition appear unobjectionable to the Court. The question on page 35, beginning on line 16, however, is clearly within the protection of the speech or debate clause.

to probe the very core of the congressional decisionmaking process. The fact that the documents were ultimately disseminated outside of Congress does not provide any justification for this sort of unwarranted incursion into the legislature's prerogatives. Conse quently, congressional deponents' objections to this category of questions will be sustained. 6 (4) The structure of various congressional committee staffs

[10] The Court will sustain the congressional deponents' objections to questions regarding the structures of various House committees. See, e.g., Transcript of Schooler Deposition (question on page 29, beginning on line 21; questions on page 30, beginning on lines 3, 6, and 10). These questions appear to the Court to probe activities that can fairly be characterized as within "the regular course of the legislative process." United States v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507 (1972). Accordingly, objections to such questions will be sustained. (5) Subject matter of committee or staff investigations

[11] The congressional deponents need not answer questions relating to the subject matter of any investigation being conducted by any congressional committee or committee staff, other than as previously set forth in this memorandum. Questions of the kind appearing on page 19, beginning on line 19, for example, are objectionable because they impinge on the legislative process in a matter inconsistent with the dictates of the speech or debate privilege. See Gravel v. United States, 408 U.S. at 628–29, 92 S.Ct. at 2628–29 (noting that the privilege forbids questioning a congressional staff member concerning the conduct of a congressman or his aides at any committee meeting).

CONCLUSION

This memorandum sets forth the guidelines by which future depositions of congressional deponents shall be governed. The parties are expected to resolve any future disagreements in light of the views expressed in this memorandum and are urged to do so without further judicial intervention. Although the Court recognizes that important issues have been raised by the parties to this dispute, it also must note that both the resources and the patience of the Court are not without limit,

Accordingly, it is by the Court this 13th day of November, 1981.

ORDERED that the depositions of congressional deponents be conducted in a manner consistent with the views expressed in this memorandum.

6 The Court is referring to questions of the kind propounded on page 36, beginning on lines 5, 10, 17, and 21 of the transcript of the Schooler deposition. These seek to determine how staff members used information provided to them in preparing various memboranda. These kinds of questions cannot be pemitted without seriously encroaching upon the legislative prerogatives of Congress in performing its function as a co-equal branch of the federal government. Cf. Eastland v. United States Servicemen's Fund, 421 U.S. at 502, 95 S.Ct. at 1820 (noting that the speech or debate clause not only protects the integrity of the legislative process, but also reinforces the separation of powers) (citations omitted).

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United States Court of Appeals, District of Columbia Circuit

June 29, 1981
Certiorari Denied Nov. 30, 1981

See 102 S.Ct.636 Appeal was taken from three different rulings of the United States District Court for the District of Columbia. The Court of Appeals held that: (1) ruling of district court denying pretrial motion to exclude from use at trial certain evidence purportedly covered by speech or debate clause of United States Constitution was not a final decision and was therefore unappealable; (2) district court's ruling denying motion to permit inspection of grand jury minutes was unappealable; and (3) even if some of the evidence presented to grand jury violated the speech or debate clause, dismissal of the grand jury indictment was not appropriate.

Dismissed in part and affirmed in part. 1. Criminal Law Ow1023(3)

Ruling of district court denying pretrial motion to exclude from use at trial certain evidence purportedly covered by speech or debate clause of the United States Constitution was not a final decision and was therefore unappealable. 28 U.S.C.A. $ 1291; U.S.C.A.Const.Art. 1, § 6, cl. 1. 2. Criminal Law Ow1023(3)

District court's ruling denying motion to permit inspection of grand jury minutes was unappealable. 3. Criminal Law Om 1023(8)

Ruling of district court denying motion to dismiss grand jury indictment on speech or debate clause of United States Constitution was immediately appealable. U.S.C.A. Const.Art. 1, $ 6, cl. 1. 4. Indictment and Information Ow144.1(1)

Even if some evidence presented to grand jury violated speech or debate clause (1065) of United States Constitution, dismissal of grand jury indictment was not appropriate; rather, only those parts of indictment which were facially invalid should have been dismissed on those grounds. U.S.C.A.Const.Art. 1, $ 6, cl. 1.

Appeal from the United States District Court for the District of Columbia.

Before WRIGHT, MCGOWAN and WILKEY, Circuit Judges.

JUDGMENT

PER CURIAM.

This cause came on to be heard on the record on appeal from the United States District Court for the District of Columbia and was briefed and argued by counsel. The issues presented have been accorded full consideration by the court; they occasion no need for an opinion. See Local Rule 13(c).

[1-4] Charles J. Carney appeals from three different rulings of the District Court. In our view, the ruling of the District Court denying appellant's pretrial motion to exclude from use at trial certain evidence purportedly covered by the Speech or Debate Clause is not a “final decision" for purposes of 28 U.S.C. § 1291 (1976), and it is therefore unappealable. See Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929), Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L. Ed. 1528 (1949); United States v. Mock, 604 F.2d 336, 340 (5th Cir. 1979). Similarly, the District Court's ruling denying appellant's motion to permit inspection of the grand jury minutes is unappealable at this juncture. See In re Special March 1974 Grand Jury, 541 F.2d 166 (7th Cir. 1976), cert. denied, 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 773 (1977); 9 J. Moore, Federal Practice | 110.13[11] at 193 (2d ed. 1980). The third ruling of the District Court, denying Carney's motion to dismiss the grand jury indictment on Speech or Debate Clause grounds, is immediately appealable. See Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). We hold, however, that the District Court's denial of this motion was proper. Even if it is true, as appellant claims, that some of the evidence presented to the grand jury violated of the Speech or Debate Clause, dismissal of the grand jury indictment was not appropriate. See United States v. Johnson, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); United States v. Myers, 635 F.2d 932, 941 (2d Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980); United States States v. Johnson, 419 F.2d 56, 58 (4th Cir. 1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1235, 25 L.Ed.2d 423 (1970); cf. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Costello v. United States, 350 U.S. 359, 76 S.Ct. 62, 100 L.Ed. 755 (1966). But see United States v. Helstoski, 635 F.2d 200 (3d Cir. 1980). Rather, we think that only those parts of an indictment which are facially invalid should be dismissed on Speech or Debate Clause grounds. See e.g., United States v. Johnson, supra, 383 U.S. 160, 86 S.Ct. 749, 15 L.Ed.2d 681. In the isntant case, however, appellant does not challenge the facial validity of the one-count indictment.

On consideration of the foregoing, it is

ORDERED and ADJUDGEĎ by this court that the portions of this appeal which challenge the District Court's rulings on the motion to exclude certain evidence from use at appellant's trial and the motion to permit inspection of grand jury minutes, being unappealable at this juncture, are hereby dismissed. It is

FURTHER ORDEŘED and ADJUDGED by this court that the ruling of the District Court whcih denied appellant's motion to dismiss the grand jury indictment is hereby affirmed.

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