During an investigation by several federal grand juries of
reported political corruption, including allegations that aliens
had paid money for the introduction of private bills in Congress to
suspend the application of the immigration laws to allow the aliens
to remain in the United States, respondent, then a Member of the
House of Representatives, appeared voluntarily before the grand
juries on 10 occasions. He testified as to his practices in
introducing private immigration bills, voluntarily produced his
files on numerous private bills, and provided copies of many such
bills introduced on behalf of various aliens. Initially, respondent
made no claim of privilege under the Fifth Amendment, but
eventually invoked that privilege, as well as alluding to his
privilege under the Speech or Debate Clause. Subsequently,
respondent was indicted on charges of accepting money in return for
being influenced in the performance of official acts, in violation
of 18 U.S.C. § 201. He moved in District Court to dismiss the
indictment on the ground, inter alia,
that it violated the
Speech or Debate Clause. The District Court denied the motion,
holding that the Clause did not require dismissal, but that the
Government was precluded from introducing evidence of past
legislative acts in any form. The Court of Appeals affirmed this
evidentiary ruling, holding, contrary to the Government's
arguments, that legislative acts could not be introduced to show
motive, since otherwise the protection of the Speech or Debate
Clause would be negated, and that respondent had not waived the
protection of that Clause by testifying before the grand
Under the Speech or Debate Clause, evidence of a
legislative act of a Member of Congress may not be introduced by
the Government in a prosecution under 18 U.S.C. § 201. United
States v. Brewster, 408 U. S. 501
United States v. Johnson, 383 U.
. Pp. 442 U. S.
(a) While the exclusion of evidence of past legislative acts
undoubtedly will make prosecutions more difficult, nevertheless,
the Speech or Debate Clause was designed to preclude prosecution of
Members for legislative acts. References to legislative acts of a
Member cannot be admitted without undermining the values protected
by that Clause. Pp. 442 U. S.
Page 442 U. S. 478
(b) As to what restrictions the Clause places on the admission
of evidence, the concern is with whether there is evidence of a
legislative act; the protection of the Clause extends only to an
act that has already been performed. A promise to deliver a speech,
to vote, or to solicit other votes is not "speech or debate" within
the meaning of the Clause, nor is a promise to introduce a bill at
some future date a legislative act. Pp. 442 U. S.
(c) Respondent did not waive the protection of the Clause by
testifying before the grand juries and voluntarily producing
documentary evidence of legislative acts. Assuming, without
deciding, that a Member of Congress may waive the Clause's
protection against being prosecuted for a legislative act, such
waiver could be found only after explicit and unequivocal
renunciation of the protection. On this record, respondent's words
and conduct did not constitute such a waiver; his exchanges with
the attorneys for the United States indicated, at most, a
willingness to waive the protection of the Fifth Amendment. Pp.
442 U. S.
(d) Nor does 18 U.S.C. § 201 amount to a congressional waiver of
the protection of the Speech or Debate Clause. Assuming,
that Congress could constitutionally waive the
protection of the Clause for individual Members, such waiver could
be shown only by an explicit and unequivocal legislative
expression, and there is no evidence of such a waiver. Pp.
442 U. S.
576 F.2d 511, affirmed.
BURGER, C. J., delivered the opinion of the Court, in which
WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. STEVENS, J.,
filed an opinion concurring in part and dissenting in part, in
which STEWART, J., joined, post, p. 442 U. S. 494
BRENNAN, J., filed a dissenting opinion, post, p. 442 U. S. 498
POWELL, J., took no part in the consideration or decision of the
Page 442 U. S. 479
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari in this case to resolve important
questions concerning the restrictions the Speech or Debate Clause
] places on the
admissibility of evidence at a trial on charges that a former
Member of the House had, while a Member, accepted money in return
for promising to introduce and introducing private bills. [Footnote 2
Respondent Helstoski is a former Member of the United States
House of Representatives from New Jersey. In 1974, while Helstoski
was a Member of the House, the Department of Justice began
investigating reported political corruption, including allegations
that aliens had paid money for the introduction of private bills
which would suspend the application of the immigration laws so as
to allow them to remain in this country.
The investigation was carried on before nine grand juries. The
grand juries were called according to the regular practice in the
District of New Jersey, which was to have a different grand jury
sitting on each of six days during the week; on two days, there was
a second grand jury. When the United States Attorney was ready to
present evidence, he presented it to whichever grand jury was
sitting that day. There was therefore no assurance that any grand
jury which voted an indictment would see and hear all of the
witnesses or see all of the documentary evidence. It was
contemplated that the grand jury that was asked to return an
indictment would review
Page 442 U. S. 480
transcripts of relevant testimony presented to other grand
Helstoski appeared voluntarily before grand juries on 10
occasions between April, 1974, and May, 1976. Each time he
appeared, he was told that he had certain constitutional rights.
Different terms were used by different attorneys for the United
States, but the following exchange, which occurred at Helstoski's
first appearance before a grand jury, fairly represents the several
"Q. You were told at that time [at the office of the United
States Attorney earlier] -- and just to repeat them today -- before
we begin, you were told that you did not have to give any testimony
to the Grand Jury or make any statements to any officer of the
United States. You understand that, do you not?"
"A. I come with full and unlimited cooperation."
"Q. I understand that. . . ."
"* * * *"
"Q. And that you also know that anything that you may say to any
agent of the United States or to this Grand Jury may later be used
in a court of law against you; you understand that as well?"
"[Affirmative response given.]"
"A. Whatever is in my possession, in my files, in its original
form, will be turned over. Those files which I have -- some of them
are very, very old. I've been in Congress since 1965. We mentioned
"* * * *"
"Q. The Grand Jury wants from you simply the records that are in
your possession, whether it be in your office in East Rutherford,
New Jersey, Washington, D. C., your home, wherever they may be, the
Grand Jury would like you to present those documents. Of course,
Page 442 U. S. 481
that, if you wish not to present those documents, you do not
have to, and that anything you do present may also, as I have told
you about your personal testimony, may be used against you later in
a court of law?"
"A. I understand that. Whatever I have will be turned over to
you with full cooperation of [sic
] this Grand Jury and
with yourself, sir."
"* * * *"
"A. I understand that. I promise full cooperation with your
office, with the FBI, this Grand Jury."
"Q. The Grand Jury is appreciative of that fact. They also want
to make certain that, when you are giving this cooperation, that
you understand, as with anyone else that might be called before a
United States Grand Jury, exactly what their constitutional rights
are. And that is why I have gone through this step by step
carefully, so there will be no question and there will be no doubt
in anybody's mind."
"A. As I indicated, I come with no request for immunity, and you
can be assured there won't be any plea of the Fifth Amendment under
Helstoski testified as to his practices in introducing private
immigration bills, and he produced his files on numerous private
bills. Included in the files were correspondence with a former
legislative aide and with individuals for whom bills were
introduced. He also provided copies of 169 bills introduced on
behalf of various aliens.
Beginning with his fourth appearance before a grand jury, in
October, 1975, Helstoski objected to the burden imposed by the
requests for information. The requests, he claimed, violated his
own right of privacy and that of his constituents. In that
appearance, he also stated that there were "some serious
Constitutional questions" raised by the failure of the United
States Attorney to return tax records which Helstoski had
voluntarily delivered. He did not, however, assert a privilege
Page 442 U. S. 482
against producing documents until the seventh appearance, on
December 12, 1975. Then he declined to answer questions,
complaining that the United States Attorney had stated to the
District Court that the grand jury had concluded that Helstoski had
misapplied campaign funds. He asserted a general invocation of
rights under the Constitution and specifically listed the Fourth,
Fifth, Sixth, Ninth, and Fourteenth Amendments.
At the next, and eighth, appearance on December 29, 1975, he
repeated his objections to the conduct of the United States
Attorney. After answering questions about campaign financing,
personal loans, and other topics, he declined to answer questions
about the receipt of a sum of money. That action was based upon his
privilege under the Fifth Amendment "and on further grounds that to
answer that question would violate my rights under the
Because the grand jury considered that Helstoski's invocation of
constitutional privileges was too general to be acceptable, it
adjourned and reconvened before the District Judge to seek a ruling
on Helstoski's claim of privilege "under the Constitution." After
questioning Helstoski, the judge stated that the privilege against
compulsory self-incrimination was the only privilege available to
Helstoski. The judge assisted Helstoski in wording a statement
invoking the privilege that was satisfactory to the grand jury.
Thereafter, Helstoski invoked his Fifth Amendment privilege in
refusing to answer further questions, including a series of
questions about private immigration bills.
Not until his ninth, and penultimate, appearance before a grand
jury did Helstoski assert any privilege under the Speech or Debate
Clause. On May 7,1976, Helstoski asked if he was a target of the
investigation. The prosecutor declined to answer the question,
stating "it would be inappropriate for this Grand Jury or indeed
for me to say that you are a target." Helstoski then invoked his
privilege against compulsory self-incrimination,
Page 442 U. S. 483
and declined to answer further questions or to produce
documents. [Footnote 3
] He also
declined to produce a copy of an insert from the Congressional
"I consulted with my attorneys, and, based on the statement that
was made on the floor, I don't have any right to be questioned at
any other time or place as reference to statements made on the
floor of Congress."
Although that was the first instance which can even remotely be
characterized as reliance upon the Speech or Debate Clause,
Helstoski earlier had indicated an awareness of another aspect of
the constitutional privileges afforded Congressmen. [Footnote 4
] During his fourth appearance
before a grand jury, in October, 1975, Helstoski complained that he
had been served with a subpoena directing him to appear before a
grand jury on a day that Congress was in session. [Footnote 5
Page 442 U. S. 484
At his 10th, and final, appearance before a grand jury,
Helstoski invoked his Fifth Amendment privilege. But he also
referred repeatedly to "other constitutional privileges which
prevail." Nevertheless, he continued to promise to produce campaign
and personal financial records as requested by the grand jury and
directed by the District Judge.
In June, 1976, a grand jury returned a multiple-count indictment
charging Helstoski and others with various criminal acts. Helstoski
moved to dismiss the indictment, contending that the grand jury
process had been abused and that the indictment violated the Speech
or Debate Clause.
The District Judge denied the motion after examining a
transcript of the evidence presented to the indicting grand jury.
He held that the Speech or Debate Clause did not require dismissal.
He also ruled that the Government would not be allowed to offer
evidence of the actual performance of any legislative acts. That
ruling prompted the Government to file a motion requesting that the
judge pass on the admissibility of 23 categories of evidence. The
Government urged that a ruling was necessary to avoid the
possibility of a mistrial. Helstoski opposed the motion, arguing
that the witnesses would not testify as the Government indicated in
The District Judge declined to rule separately on each of the
categories. Instead, he ordered:
"The United States may not, during the presentation of its
case-in-chief at the trial of [this] Indictment, introduce evidence
of the performance of a past legislative
Page 442 U. S. 485
on the part of the defendant, Henry Helstoski,
derived from any source and for any purpose."
The Government filed a timely appeal from the evidentiary
ruling, relying upon 18 U.S.C. § 3731:
"An appeal by the United States shall lie to a court of appeals
from a decision or order of a district court suppressing or
excluding evidence . . . not made after the defendant has been put
in jeopardy and before the verdict or finding on an indictment or
information, if the United States attorney certifies to the
district court that the appeal is not taken for purpose of delay
and that the evidence is a substantial proof of a fact material in
"The appeal in all such cases shall be taken within thirty days
after the decision, judgment or order has been rendered and shall
be diligently prosecuted."
"* * * *"
"The provisions of this section shall be liberally construed to
effectuate its purposes."
The Court of Appeals affirmed the District Court's evidentiary
ruling. 576 F.2d 511 (CA3 1978). It first concluded that an appeal
was proper under § 3731, relying primarily upon its earlier
decision in United States v. Beck,
483 F.2d 203 (1973),
414 U.S. 1132 (1974), and upon the language
in the section mandating that it be "liberally construed."
Turning to the merits of the Government's appeal, the Court of
Appeals rejected both of the Government's arguments: (a) that
legislative acts could be introduced to show motive; and (b) that
legislative acts could be introduced because Helstoski had waived
his privilege by testifying before the grand juries. The court
relied upon language in United States v. Brewster,
408 U. S. 501
408 U. S. 527
(1972), prohibiting the introduction of evidence as to how a
Congressman acted on, voted on, or resolved
Page 442 U. S. 486
a legislative issue. The court reasoned that to permit evidence
of such acts under the guise of showing motive would negate the
protection afforded by the Speech or Debate Clause.
In holding Helstoski had not waived the protection of the Speech
or Debate Clause, the Court of Appeals did not decide whether the
protection could be waived. Rather, it assumed that a Member of
Congress could waive the privilege, but held that any waiver must
be "express and for the specific purpose for which the evidence of
legislative acts is sought to be used against the member." 576
F.2d, at 523-524. Any lesser standard, the court reasoned, would
frustrate the purpose of the Clause. Having found on the record
before it that no waiver was shown, it affirmed the District Court
order under which the Government is precluded from introducing
evidence of past legislative acts in any form.
In seeking review of the judgment of the Court of Appeals, the
Government contends that the Speech or Debate Clause does not bar
the introduction of all evidence referring to legislative acts. It
concedes that, absent a waiver, it may not introduce the bills
themselves. But the Government argues that the Clause does not
prohibit it from introducing evidence of discussions and
correspondence which describe and refer to legislative acts if the
discussions and correspondence did not occur during the legislative
process. The Government contends that it seeks to introduce such
evidence to show Helstoski's motive for taking money, not to show
his motive for introducing the bills. Alternatively, the Government
contends that Helstoski waived his protection under the Speech or
Debate Clause when he voluntarily presented evidence to the grand
juries. Volunteered evidence, the Government argues, is admissible
at trial regardless of its content.
Finally, the Government argues, by enacting 18 U.S.C. § 201,
Congress has shared its authority with the Executive and the
Judiciary by express delegation authorizing the indictment
Page 442 U. S. 487
and trial of Members who violate that section -- in short, an
institutional decision to waive the privilege of the Clause.
The Court's holdings in United States v. Johnson,
383 U. S. 169
(1966), and United States v. Brewster, supra,
doubt that evidence of a legislative act of a Member may not be
introduced by the Government in a prosecution under § 201.
there had been extensive questioning of both
Johnson, a former Congressman, and others about a speech which
Johnson had delivered in the House of Representatives and the
motive for the speech. The Court's conclusion was unequivocal:
"We see no escape from the conclusion that such an intensive
judicial inquiry, made in the course of a prosecution by the
Executive Branch under a general conspiracy statute, violates the
express language of the Constitution and the policies which
383 U.S. at 383 U. S.
we explained the holding of
in this way:
thus stands as a unanimous holding that a
Member of Congress may be prosecuted under a criminal statute
provided that the Government's case does not rely
Page 442 U. S. 488
on legislative acts or the motivation for legislative acts. A
legislative act has consistently been defined as an act generally
done in Congress in relation to the business before it. In sum, the
Speech or Debate Clause prohibits inquiry only into those things
generally said or done in the House or the Senate in the
performance of official duties, and into the motivation for those
408 U.S. at 408 U. S.
The Government, however, argues that exclusion of references to
past legislative acts will make prosecutions more difficult,
because such references are essential to show the motive for taking
money. In addition, the Government argues that the exclusion of
references to past acts is not logically consistent. In its view,
if jurors are told of promises to perform legislative acts, they
will infer that the acts were performed, thereby calling the acts
themselves into question.
We do not accept the Government's arguments; without doubt, the
exclusion of such evidence will make prosecutions more difficult.
Indeed, the Speech or Debate Clause was designed to preclude
prosecution of Members for legislative acts. [Footnote 7
Page 442 U. S. 489
The Clause protects "against inquiry into acts that occur in the
regular course of the legislative process and into the motivation
for those acts." Id.
at 408 U. S. 525
It "precludes any showing of how [a legislator] acted, voted, or
at 408 U. S. 527
Promises by a Member to perform an act in the future are not
legislative acts. Brewster
makes clear that the "compact"
may be shown without impinging on the legislative function.
at 408 U. S.
We therefore agree with the Court of Appeals that references to
past legislative acts of a Member cannot be admitted without
undermining the values protected by the Clause. We implied as much
when we explained:
"To make a prima facie case under [the] indictment, the
Government need not show any act of [Brewster] subsequent
to the corrupt promise for payment, for it is taking the bribe, not
performance of the illicit compact, that is a criminal act."
(Emphasis altered.) A similar inference is
appropriate from Johnson,
where we held that the Clause
was violated by questions about motive addressed to others than
Johnson himself. That holding would have been unnecessary if the
Clause did not afford protection beyond legislative acts
MR. JUSTICE STEVENS misconstrues our holdings on the Speech or
Debate Clause in urging: "The admissibility line should be based on
the purpose of the offer, rather than the specificity of the
at 442 U. S. 496
The Speech or Debate Clause does not refer to the prosecutor's
purpose in offering evidence. The Clause does not simply state, "No
proof of a legislative act shall be offered";
prohibition of the Clause is far broader. It provides that Members
"shall not be questioned
in any other Place." Indeed, as
MR. JUSTICE STEVENS recognizes, the admission of evidence of
"may reveal [to the jury] some information about the performance
of legislative acts and the legislator's motivation
Page 442 U. S. 490
in conducting official duties."
at 442 U. S. 496
Revealing information as to a legislative act -- speaking or
debating -- to a jury would subject a Member to being "questioned"
in a place other than the House or Senate, thereby violating the
explicit prohibition of the Speech or Debate Clause.
As to what restrictions the Clause places on the admission of
evidence, our concern is not with the "specificity" of the
reference. Instead, our concern is whether there is mention of a
legislative act. To effectuate the intent of the Clause, the Court
has construed it to protect other "legislative acts" such as
utterances in committee hearings and reports. E.g., Doe v.
McMillan, 412 U. S. 306
(1973). But it is clear from the language of the Clause that
protection extends only to an act that has already been performed.
A promise to deliver a speech, to vote, or to solicit other votes
at some future date is not "speech or debate." Likewise, a promise
to introduce a bill is not a legislative act. Thus, in light of the
strictures of Johnson
Court order prohibiting the introduction of evidence "of the
performance of a past legislative act" was redundant.
The Government argues that the prohibition of the introduction
of evidence should not apply in this case, because the protections
of the Clause have been waived. The Government suggests two sources
of waiver: (a) Helstoski's conduct and utterances, and (b) the
enactment of 18 U.S.C. § 201 by Congress. The Government argues
that Helstoski waived the protection of the Clause by testifying
before the grand juries and voluntarily producing documentary
evidence of legislative acts. The Government contends that
Helstoski's conduct is sufficient to meet whatever standard is
required for a waiver of that protection. We cannot agree.
Like the District Court and the Court of Appeals, we perceive no
reason to decide whether an individual Member may waive the Speech
or Debate Clause's protection against being prosecuted for a
legislative act. Assuming that is possible,
Page 442 U. S. 491
we hold that waiver can be found only after explicit and
unequivocal renunciation of the protection. The ordinary rules for
determining the appropriate standard of waiver do not apply in this
setting. See generally Johnson v. Zerbst, 304 U.
, 304 U. S. 464
(1938) ("intentional relinquishment or abandonment of a known right
or privilege"); Garner v. United States, 424 U.
, 424 U. S. 654
n. 9, 424 U. S. 657
The Speech or Debate Clause was designed neither to assure fair
trials nor to avoid coercion. Rather, its purpose was to preserve
the constitutional structure of separate, coequal, and independent
branches of government. The English and American history of the
privilege suggests that any lesser standard would risk intrusion by
the Executive and the Judiciary into the sphere of protected
legislative activities. The importance of the principle was
recognized as early as 1808 in Coffin v. Coffin,
1, 27, where the court said that the purpose of the principle was
to secure to every member "exemption
from prosecution, for
every thing said or done by him, as a representative, in the
exercise of the functions of that office." (Emphasis added.)
This Court has reiterated the central importance of the Clause
for preventing intrusion by Executive and Judiciary into the
"[I]t is apparent from the history of the clause that the
privilege was not born primarily of a desire to avoid private suits
. . . , but rather to prevent intimidation by the executive and
accountability before a possibly hostile judiciary."
"* * * *"
"There is little doubt that the instigation of criminal charges
against critical or disfavored legislators by the executive in a
judicial forum was the chief fear prompting the long struggle for
parliamentary privilege in England and, in the context of the
American system of separation of powers, is the predominate thrust
of the Speech
Page 442 U. S. 492
or Debate Clause."
United States v. Johnson,
383 U.S. at 383 U. S.
-181, 383 U. S.
We reaffirmed that principle in Gravel v. United
States, 408 U. S. 606
408 U. S. 618
(1972), when we noted that the "fundamental purpose" of the Clause
was to free "the legislator from executive and judicial oversight
that realistically threatens to control his conduct as a
On the record before us, Helstoski's words and conduct cannot be
seen as an explicit and unequivocal waiver of his immunity from
prosecution for legislative acts -- assuming such a waiver can be
made. The exchanges between Helstoski and the various United States
Attorneys indeed indicate a willingness to waive the protection of
the Fifth Amendment; but the Speech or Debate Clause provides a
separate, and distinct, protection which calls for at least as
clear and unambiguous an expression of waiver. No such showing
appears on this record.
The Government also argues that there has been a sort of
institutional waiver by Congress in enacting § 201. According to
the Government, § 201 represents a collective decision to enlist
the aid of the Executive Branch and the courts in the exercise of
Congress' powers under Art. I, § 5, to discipline its Members. This
Court has twice declined to decide whether a Congressman could,
consistent with the Clause, be prosecuted for a legislative act as
such, provided the prosecution were "founded upon a narrowly drawn
statute passed by Congress in the exercise of its legislative power
to regulate the conduct of its members." Johnson, supra,
at 383 U. S. 185
United States v. Brewster,
408 U.S. at 408 U. S. 529
n. 18. We see no occasion to resolve that important question. We
hold only that § 201 does not amount to a congressional waiver of
the protection of the Clause for individual Members.
We recognize that an argument can be made from precedent and
history that Congress, as a body, should not be free to strip
individual Members of the protection guaranteed by the
Page 442 U. S. 493
Clause from being "questioned" by the Executive in the courts.
The controversy over the Alien and Sedition Acts reminds us how one
political party in control of both the Legislative and the
Executive Branches sought to use the courts to destroy political
The Supreme Judicial Court of Massachusetts noted in
"the privilege secured . . . is not so much the privilege of the
house, as an organized body, as of each individual member composing
it, who is entitled to this privilege, even against the
declared will of the house.
4 Mass., at 27 (emphasis added). In a similar vein in
"The immunities of the Speech or Debate Clause were not written
into the Constitution simply for the personal or private benefit of
Members of Congress, but to protect the integrity of the
legislative process by insuring the independence of individual
408 U.S. at 408 U. S. 507
(emphasis added). See also id.
at 408 U. S. 524
We perceive no reason to undertake, in this case, consideration of
the Clause in terms of separating the Members' rights from the
rights of the body.
that the Congress could
constitutionally waive the protection of the Clause for individual
Members, such waiver could be shown only by an explicit and
unequivocal expression. There is no evidence of such a waiver in
the language or the legislative history of § 201 or any of its
predecessors. [Footnote 8
Page 442 U. S. 494
We conclude that there was neither individual nor institutional
waiver, and that the evidentiary barriers erected by the Speech or
Debate Clause must stand. Accordingly, the judgment of the Court of
MR. JUSTICE POWELL took no part in the consideration or decision
of this case.
The Speech or Debate Clause provides that "for any Speech or
Debate in either House, they [the Senators and Representatives]
shall not be questioned in any other Place." Art. I, § 6.
This case was argued together with No. 7546, Helstoski v.
p. 442 U. S. 500
which involves the question of whether mandamus is an appropriate
means of challenging the validity of an indictment on the ground
that it violates the Speech or Debate Clause.
That Helstoski may not have had the extent of his privilege
clearly in mind is indicated by the following exchange between him
and an Assistant United States Attorney during Helstoski's ninth
appearance before a grand jury:
"A. [Helstoski] I stand on my Constitutional privilege regarding
the Fifth Amendment."
"Q. And that privilege is against self-incrimination?"
"A. Whatever the Fifth Amendment is."
The District Court found that
"Helstoski was aware of the Speech or Debate Clause at the time
he made his first grand jury appearance. He had recently concluded
litigation involving his franking privilege in which he had relied
upon the Speech or Debate Clause. Schiaflo v.
Helstoski, 350 F.
(D.N.J. 1972), rev'd in part, aff'd in part and
492 F.2d 413 (3d Cir. 1974). In that litigation,
Helstoski was represented by the same attorney who represented him
throughout his grand jury appearances."
He offered this explanation to an Assistant United States
"A. [Helstoski] Do you want to get into the Constitutional
question of whether or not you could serve a member of Congress
while Congress is in session?"
"You know very well that can't be done . . . ."
"Q. Congressman, you've used the term 'illegal subpoena.' Who
told you it was illegal?"
"A. That's my own judgment based on the Constitution and the
Rules of Procedure of the House of Representatives."
We agree with the Court of Appeals that 18 U.S.C. § 3731
authorized the Government to appeal the District Court order
restricting the evidence that could be used at trial. All of the
requisites of § 3731 were met. There was an order of a District
Court excluding evidence; a United States Attorney filed the proper
certification; and the appeal was taken within 30 days. In
United States v. Wilson, 420 U. S. 332
420 U. S. 337
(1975), we concluded that the purpose of the section was "to remove
all statutory barriers to government appeals and to allow appeals
whenever the Constitution would permit." See also United States
v. Scott, 437 U. S. 82
437 U. S. 84
(1978); H.R.Conf.Rep. No. 91-1768, p. 21 (1970); S.Rep. No.
91-1296, pp. 2-3 (1970); 116 Cong.Rec. 35659 (1970) (remarks of
Sen. Hruska). There are no constitutional barriers to this appeal,
and we conclude that the appeal was authorized by § 3731.
MR. JUSTICE STEVENS suggests that our holding is broader than
the Speech or Debate Clause requires. In his view,
"it is illogical to adopt rules of evidence that will allow a
Member of Congress effectively to immunize himself from conviction
[for bribery] simply by inserting references to past legislative
acts in all communications, thus rendering all such evidence
at 442 U. S. 498
Nothing in our opinion, by any conceivable reading, prohibits
excising references to legislative acts so that the remainder of
the evidence would be admissible. This is a familiar process in the
admission of documentary evidence. Of course, a Member can use the
Speech or Debate Clause as a shield against prosecution by the
Executive Branch, but only for utterances within the scope of
legislative acts as defined in our holdings. That is the clear
purpose of the Clause. The Clause is also a shield for libel, and,
beyond doubt, it "has enabled reckless men to slander and even
destroy others with impunity, but that was the conscious choice of
the Framers." United States v. Brewster, 408 U.
, 408 U. S. 516
(1972). Nothing in our holding today, however, immunizes a Member
from punishment by the House or the Senate by disciplinary action
including expulsion from the Member's seat.
Section 201 was enacted in 1962. Pub. L. 87-849, 76 Stat. 1119.
It replaced a section that had remained unchanged since its
original enactment in 1862. Ch. 180, 12 Stat. 577. See
Rev.Stat. §1781; 18 U.S.C. §205 (1958 ed.). The debates on the 1862
Act reveal no discussion of the speech or debate privilege.
Cong. Globe, 37th Cong., 2d Sess., 3260 (1862).
As explained in the House Report accompanying the 1962 Act, the
purpose of the Act was "to render uniform the law describing a
bribe and prescribing the intent or purpose which makes its
transfer unlawful." H.R.Rep. No. 748, 87th Cong., 1st Sess., 15
(1961). The Senate Report expanded the explanation and said that a
purpose of the Act was the
"substitution of a single comprehensive section of the Criminal
Code for a number of existing statutes concerned with bribery. This
consolidation would make no significant changes of substance and,
more particularly, would not restrict the broad scope of the
present bribery statutes as construed by the courts."
S.Rep. No. 2213, 87th Cong., 2d Sess., 4 (1962).
MR. JUSTICE STEVENS, with whom MR. JUSTICE STEWART joins,
concurring in part and dissenting in part.
The Court holds that United States v. Brewster,
408 U. S. 501
United States v. Johnson, 383 U.
, preclude the Government from introducing
evidence of a legislative act by a Member of Congress. I agree that
those cases do prevent the prosecution from attempting to prove
that a legislative act was performed. I do not believe, however,
that they require rejection of evidence that merely refers to
legislative acts when that evidence is not offered for the purpose
of proving the legislative act itself.
the Court held that a Member of Congress
could not be prosecuted for conspiracy against the United States
based on his preparation and delivery of an improperly motivated
speech in the House of Representatives. After noting that the
attention given to the speech was not merely "an incidental part of
the Government's case," but rather was "an intensive judicial
inquiry" into the speech's substance and motivation, id.
at 383 U. S.
-177, the Court held that the prosecution
Page 442 U. S. 495
violated the express language of the Speech or Debate Clause and
the policies that underlie it. The Court carefully emphasized,
however, that its decision was limited to a case of that character,
"does not touch a prosecution which . . . does not draw in
question the legislative acts of the defendant member of Congress
or his motives for performing them."
at 383 U. S.
the Court held that the Speech or Debate
Clause did not bar prosecution of a former Senator for receiving
money in return for being influenced in the performance of a
legislative act. The Court read Johnson
as allowing a
prosecution of a Member of Congress so long as the Government's
case does not rely on legislative acts or the motivation for such
acts. It reasoned that Brewster was not being prosecuted for the
performance of a legislative act, but rather for soliciting or
agreeing to take money with knowledge that the donor intended to
compensate him for an official act. Whether the Senator ever
performed the official act was irrelevant.
As a practical matter, of course, it is clear that evidence
relating to a legislator's motivation for accepting a bribe will
also be probative of his intent in committing the official act for
which the bribe was solicited or paid. Nonetheless, the Court made
clear in Brewster
that inquiries into the legislator's
motivation in accepting payment are not barred by
proscription against inquiry into legislative
motivation. "[A]n inquiry into the purpose of a bribe," the
Court held, "does not draw in question the
legislative acts of the defendant member of Congress or his motives
for performing them.'" 408 U.S. at 408 U. S. 526
quoting Johnson, supra, at 383 U. S. 185.
Thus, so long as the Government's case does not depend upon the
legislator's motivation in committing an official act, inquiries
into his motivation in accepting a bribe -- which obviously may be
revealing as to both the existence of legislative acts and the
Page 442 U. S. 496
them -- are permissible under the Speech or Debate Clause, as
interpreted in Brewster.
recognition of this distinction, in my
judgment, provides strong support for the Government's argument in
this case. Here, the Government is seeking to introduce written and
testimonial evidence as to Helstoski's motivation in soliciting and
accepting bribes. Some of this evidence makes reference to past or
future legislative acts for which payment is being sought or given.
Obviously, this evidence, to the extent it is probative of
Helstoski's intent in accepting payment, is an important and
legitimate part of the Government's case against the former
Congressman. Whether or not he ever committed the legislative acts
is wholly irrelevant to the Government's proof, and inquiry into
that subject is prohibited by Johnson
But the mere fact that legislative acts are
mentioned does not, in my view, require that otherwise relevant and
admissible evidence be excluded. The acts may or may not have been
performed; the statements in the letters may be true or false. The
existence of the statements does not establish that legislative
acts were performed; nor does it constitute inquiry into those
acts. To be sure, such statements may reveal some information about
the performance of legislative acts and the legislator's motivation
in conducting official duties. However, that is also true of other
evidence making no reference to specific past legislative acts, but
rather dealing only with promises of future performance or less
specific commitments to legislative action. Brewster
establishes that such evidence is admissible in bribery
prosecutions because it does not draw in question the legislative
act itself or its motivation. The admissibility line should be
based on the purpose of the offer, rather than the specificity of
the reference. So long as the jury is instructed that it should not
consider the references as proof of legislative acts, and so long
as no inquiry is made with respect to the motivations for such
does not bar the introduction
Page 442 U. S. 497
of evidence simply because reference is made to legislative
Indeed, I think it important to emphasize that the majority
today does not read Brewster
to foreclose the introduction
of any evidence making reference to legislative acts. The Court
holds that evidence referring only to acts to be performed in the
future may be admitted into evidence. Ante
at 442 U. S. 490
The Court explains this holding by noting that a promise to perform
a legislative act in the future is not, itself, a legislative act.
But it is equally true that the solicitation of a bribe which
contains a self-laudatory reference to past performance is not
itself a legislative act. Whether the legislator refers to past or
to future performance, his statement will be probative of his
intent in accepting payment and, in
Page 442 U. S. 498
either event; may incidentally shed light on the performance and
motivation of legislative acts. The proper remedy, in my judgment,
is not automatic inadmissibility for past references and automatic
admissibility for future references. Rather, drawing on the
language of the Constitution itself, the test should require the
trial court to analyze the purpose of the prosecutor's questioning.
If the evidentiary references to legislative acts are merely
incidental to a proper purpose, the judge should admit the evidence
and instruct the jury as to its limited relevance. The Constitution
mandates that legislative acts "shall not be questioned"; it does
not say they shall not be mentioned.
The Court properly notes that the Government has no valid
complaint simply because application of the Speech or Debate Clause
renders some prosecution of Members of Congress "difficult."
at 442 U. S. 488
But I do not believe the Clause was intended to make such
prosecution virtually impossible. In light of the Court's holding
that bribery prosecutions are permissible, it
is illogical to adopt rules of evidence that will allow a Member of
Congress effectively to immunize himself from conviction simply by
inserting references to past legislative acts in all
communications, thus rendering all such evidence inadmissible.
Because I believe the exclusionary rule the Court applies today
affords greater protection than is necessary to fulfill the mission
of the Speech or Debate Clause, I respectfully dissent to the
limited extent indicated above.
* In reaching this conclusion, I have not overlooked the
language in Brewster,
relied upon by respondent, that
precludes any showing of how [Brewster] acted,
voted, or decided." 408 U.S. at 408 U. S. 527
Taken out of context, that language would appear to support
Helstoski's claim that all references to legislative action are
inadmissible. When placed in its proper context, however, it
clearly does not.
The quoted statement was made with respect to the dissent's
argument that criminal prosecution should not be permitted, since
the indictment charged the offense as being in part linked to
Brewster's "action, vote and decision on postage rate legislation."
In response, the Court pointed out that, while this was true,
"[t]he Government, as we have noted, need not prove
specific act, speech, debate, or decision to establish a violation
of the statute under which appellee was indicted. To accept the
arguments of the dissent would be to retreat from the Court's
position in Johnson
that a Member may be convicted if no
showing of legislative act is required.
at 408 U. S. 528
(emphasis added). When placed in this context, I think it clear
that the statement relied upon by respondent should be read only as
establishing -- as Johnson
itself held, and as the
Court read Johnson
-- that a Member of
Congress may not be prosecuted if proof of a specific legislative
act would be required as an element of the Government's case. The
recognition by the Court today that evidence referring to future
legislative actions is admissible, see ante
442 U. S. 490
itself is a rejection of the broad reading respondent attaches to
MR JUSTICE BRENNAN, dissenting.
While I have no quarrel with the Court's decision to limit the
evidence which the Government may introduce at Helstoski's trial, I
would go much further and order the dismissal of Helstoski's
"[P]roof of an agreement to be 'influenced' in the performance
of legislative acts is by definition an inquiry into their motives,
Page 442 U. S. 499
not the acts themselves or the circumstances surrounding them
are questioned at trial."
United States v. Brewster, 408 U.
, 408 U. S. 536
(1972) (BRENNAN J., dissenting). I continue to adhere to the view
expressed in my dissent in Brewster,
and would hold
"a corrupt agreement to perform legislative acts, even if
provable without reference to the acts themselves, may not be the
subject of a general conspiracy prosecution."
at 408 U. S.