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BRENNAN, J., dissenting

408 U.S.

not avoid proving the performance of the bargained-for acts, for it is the acts themselves, together with the motivating bribe, that form the basis of Count 9 of the indictment. Proof of "knowledge that the donor was paying . . . for an official act” may be enough for conviction under $ 201 (g). But assuming it is, the Government still must demonstrate that the "official act” referred to was actually performed, for that is what the indictment charges. Count 9, in other words, calls into question both the performance of official acts by the Senator and his reasons for voting as he did. Either inquiry violates the Speech or Debate Clause.

The counts charging only a corrupt promise to vote are equally repugnant to the Clause. The Court may be correct that only receipt of the bribe, and not performance of the bargain, is needed to prove these counts. But proof of an agreement to be “influenced” in the performance of legislative acts is by definition an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial. Furthermore, judicial inquiry into an alleged agreement of this kind carries with it the same dangers to legislative independence that are held to bar accountability for official conduct itself. As our Brother WHITE cogently states, post, at 556:

"Bribery is most often carried out by prearrangement; if that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force. It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote, whatever it may be, but he can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain.”

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BRENNAN, J., dissenting

Thus, even if this were an issue of first impression, I would hold that this prosecution, being an extracongressional inquiry into legislative acts and motives, is barred by the Speech or Debate Clause.

What is especially disturbing about the Court's result, however, is that this is not an issue of first impression, but one that was settled six years ago in United States v. Johnson, 383 U. S. 169 (1966). There a former Congressman was charged with violating the federal conflict-of-interest statute, 18 U.S.C. § 281 (1964 ed.), and with conspiring to defraud the United States, 18 U. S. C. § 371, by accepting a bribe in exchange for his agreement to seek dismissal of federal indictments pending against officers of several savings and loan companies. Part of the alleged conspiracy was a speech delivered by Johnson on the floor of the House, favorable to loan companies generally. The Government relied on that speech at trial and questioned Johnson extensively about its contents, authorship, and his reasons for delivering it. The Court of Appeals set aside the conspiracy conviction, holding that the Speech or Debate Clause barred such a prosecution based on an allegedly corrupt promise to deliver a congressional speech. In appealing that decision the Government made the very same argument that appears to persuade the Court today:

“[The rationale of the Clause] is applicable in suits based upon the content of a legislator's speech or action, where immunity is necessary to prevent impediments to the free discharge of his public duties. But it does not justify granting him immunity from prosecution for accepting or agreeing to accept money to make a speech in Congress. The latter case poses no threat which could reasonably

a Congressman to restrain himself in his official speech, because no speech, as such, is being

cause

BRENNAN, J., dissenting

408 U.S.

questioned. It is only the antecedent conduct of accepting or agreeing to accept the bribe which is attacked in such a prosecution. Whether the party taking the bribe lives up to his corrupt promise or not is immaterial. The agreement is the essence of the offense; when that is consummated, the offense is complete.' 3 Wharton, Criminal Law and Procedure, $ 1383 (Anderson ed. 1957) .... Thus, if respondent, after accepting the bribe, had failed to carry out his bargain, he could still be prosecuted for the same offense charged here, but it could not be argued that any speech was being questioned' in his prosecution. The fact that respondent fulfilled his bargain and delivered the corrupt speech should not render the entire course of conduct constitutionally protected.” Brief for the United States in United States v. Johnson, No. 25, 0. T. 1965, pp.

10–11. The Johnson opinion answered this argument in two places. After emphasizing that the prosecution at issue was "based upon an allegation that a member of Congress abused his position by conspiring to give a particular speech in return for remuneration from private interests," the Court stated, 383 U. S., at 180:

“However reprehensible such conduct may be, we believe the Speech or Debate Clause extends at least so far as to prevent it from being made the basis of a criminal charge against a member of Congress of conspiracy to defraud the United States by impeding the due discharge of government functions. The essence of such a charge in this context is that the Congressman's conduct was improperly motivated, and ... that is precisely what the Speech or Debate Clause generally forecloses from executive and judicial inquiry.(Emphasis supplied.)

501

BRENNAN, J., dissenting

Again, the Court stated, id., at 182–183:

"The Government argues that the clause was meant to prevent only prosecutions based upon the 'content of speech, such as libel actions, but not those founded on the antecedent unlawful conduct of accepting or agreeing to accept a bribe.' Brief of the United States, at 11. Although historically seditious libel was the most frequent instrument for intimidating legislators, this has never been the sole form of legal proceedings so employed, and the language of the Constitution is framed in the broad

est terms." Finally, any doubt that the Johnson Court rejected the argument put forward by the Government was dispelled by its citation of Ex parte Wason, L. R. 4 Q. B. 573 (1869). In that case

In that case a private citizen moved to require a magistrate to prosecute several members of the House of Lords for conspiring to prevent his petition from being heard on the floor. The court denied the motion, holding that "statements made by members of either House of Parliament in their places in the House ... could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law.Id., at 576 (Cockburn, C. J.). Mr. Justice Blackburn added, “I entirely concur in thinking that the information did only charge an agreement to make statements in the House of Lords, and therefore did not charge any indictable offence.Ibid.

Johnson, then, can only be read as holding that 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.

BRENNAN, J., dissenting

408 U.S.

In the face of that holding and Johnson's rejection of reasoning identical to its own, the Court finds support in the fact that Johnson "authorized a new trial on the conspiracy count, provided that all references to the making of the speech were eliminated.” Ante, at 511. But the Court ignores the fact that, with the speech and its motives excluded from consideration, this new trial was for nothing more than a conspiracy to intervene before an Executive Department, i. e., the Justice Department. And such executive intervention has never been considered legislative conduct entitled to the protection of the Speech or Debate Clause. See infra, at 542. The Court cannot camouflage its departure from the holding of Johnson by referring to a collateral ruling having little relevance to the fundamental issues of legislative privilege involved in that case. I would follow Johnson and hold that Senator Brewster's alleged promise, like the Congressman's there, is immune from executive or judicial inquiry.

II The only issue for me, then, is the one left open in Johnson—that is, the validity of a "prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded [not upon a general conspiracy statute but] upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.” 383 U. S., at 185. Assuming that 18 U. S. C. § 201 is such a “narrowly drawn statute," I do not believe that it, any more than a general enactment, can serve as the instrument for holding a Congressman accountable for his legislative acts outside the confines of his own chamber. The Government offers several reasons why such a "waiver” of legislative immunity should be allowed. None of these, it seems to me, is sufficient to override

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