Next, Rep. Myers claimed that section 201 was applied in an unconstitutional manner in this case. His argument was that the present indictment exemplified a deliberate pattern of selective enforcement, and that the conduct of the Government "was manipulative, intentional, and carefully planned ... to intimidate, harass and compromise members of the Legislative Branch.” (Id. at 33] The framers of the Constitution, said Rep. Myers, formulated the Speech or Debate Clause in order to protect legislators against the type of intimidation used by the Government in the instant case. To allow the Government to invoke section 201 against him, concluded Rep. Myers, would thus violate the Speech or Debate Clause and would serve to erode the independence of the Legislative branch. Rep. Myers also claimed that the indictment, as framed, contained numerous references to legislative acts. Consequently, the Government would have to introduce at trial evidence protected by the Speech or Debate Clause. Rep. Myers' final argument concerning section 201 was that Congress never intended that the statute would be used to permit Government agents to establish wholly fictitious criminal enterprises in order to tempt Members of Congress to accept bribes.

The fourth major point raised by Rep. Myers in his June 10, 1980 motion to dismiss was that the instant prosecution presented a nonjusticiable political question. First, said Rep. Myers, there was a textually demonstrable constitutional commitment of the issue to a coordinate political department in that the Punishment Clause and the Speech or Debate Clause provide for the resolution of problems of the type presented in the indictment. Second, it would be impossible for the court to resolve the issues in this case without showing a lack of respect for either the Legislative or Executive branch. Third, judicial resolution of the issues would not necessarily be the final word since Rep. Myers would also be subjected to disciplinary action by the House of Representatives. Thus, judicial resolution would present a "potentiality of embarrassment from multifarious pronouncements by various departments on one question.” [Id. at 37, quoting Baker v. Carr, 369 U.S. 186, 217 (1962)]

On July 11, 1980, the court, Judge Jacob Mishler presiding, denied Rep. Myers’ July 10, 1980 motion to dismiss. No memorandum accompanied the court's decision.

On July 18, 1980, Rep. Myers appealed the denial of his motion to dismiss to the U.S. Court of Appeals for the Second Circuit.

On August 8, 1980, the court of appeals issued its decision. (United States v. Myers, 635 F.2d 932 (2d Cir. 1980] In an opinion delivered by Circuit Judge Jon O. Newman, the decision of Judge Mishler was affirmed. Turning first to the appealability of Judge Mishler's decision, the circuit court likened the instant case to Helstoski v. Meanor, 442 U.S. 500 (1979). In Helstoski the U.S. Supreme Court had ruled that a Member of Congress was entitled to appeal, in advance of trial, the denial of a motion to dismiss, where the motion alleged violations of the Speech or Debate Clause. The Supreme Court had reasoned that the Speech or Debate Clause was designed to protect Members not only from the results of litigation, but also from the burden of defending themselves. Thus, said the Supreme Court, if a Member is to enjoy the full protection of the Clause, his challenge to an indictment must be appealable before exposure to trial occurs. For these reasons, the circuit court held that it had jurisdiction to hear Rep. Myers Speech or Debate Clause claims. The court further held that the reasoning in Helstoski also permitted-if not required—the circuit court to provide pretrial review of Rep. Myers' challenges to the indictment based on the separation of powers doctrine. Said the court:

Though this doctrine does not provide as precise a protection as the Speech or Debate Clause, there are equivalent reasons for vindicating in advance of trial whatever protection it affords as a defense to prosecution on criminal charges. If, because of the separation of powers, a particular prosecution of a Member of Congress is constitutionally prohibited, the policies underlying that doctrine require that the Congressman be shielded from standing trial. Like the Speech or Debate Clause, the doctrine of separation of powers serves as a vital check upon the Executive and Judicial Branches to respect the independence of the Legislative Branch, not merely for the benefit of the Members of Congress, but, more importantly, for the right of the people to be fully and fearlessly represented by their elected Senators and Congressmen. [635 F.2d at 935–

936) After noting that little would be lost in the way of judicial efficiency if pre-trial appeals by indicted Members of Congress were to include all legal defenses, the court found that it also had jurisdiction to decide Rep. Myers' claims regarding the applicability and constitutionality of 18 U.S.C. 8 201.

The circuit court then turned to the merits. The court rejected Rep. Myers' claim that the grand jury improperly considered information protected by the Speech or Debate Clause. In this regard, the court stated:

Appellant's ... claim is that the indictment should be dismissed because the grand jury that returned it heard some evidence of legislative acts that is privileged by the Speech or Debate Clause. Normally, an indictment is not subject to dismissal on the ground that there was "inadequate or incompetent" evidence before the grand jury. Costello v. United States, 350 U.S. 359, 362 (1956). This rule has been specifically applied to reject a claim that a grand jury heard some evidence protected by the Speech or Debate Clause. United States v. Johnson, 419 F.2d 56 (4th Cir. 1969), cert. denied, 397 U.S. 1010 (1970). See also United States v. Helstoski, 576 F.2d 511, 519 (3d Cir. 1978), aff'd without consideration of this point, sub nom. Helstoski v. Meanor, 442 U.S. 500 (1979); contra, United States v. Helstoski, Crim. No. 76-201 (D.N.J. Feb. 27, 1980) (unpublished). The procedural history of Johnson makes it especially instructive. Congressman Johnson's original conviction on both substantive and conspiracy counts was reversed by the Fourth Circuit, 337 F.2d 180 (1964). The Supreme Court agreed that retrial was necessary because a portion of the con icy count specifically charged con

duct protected by the Speech or Debate Clause. 383 U.S. at

However, the Supreme Court remanded for a new trial on the original indictment, requiring only deletion of that portion of the indictment charging protected conduct. (Id. at 185] Though the grand jury that had returned the indictment obviously had heard evidence of the protected conduct, which it had specifically alleged to be part of the conspiracy, the Supreme Court raised no objection to retrial on the redacted indictment. On appeal from Johnson's second conviction, the Fourth Circuit considered and rejected his challenge to the grand jury's receipt of privileged evidence. 419 F.2d at 58. We agree with the conclusion reached by the Fourth Circuit, which appears to be the implicit conclusion of the Supreme Court as well. 10

10 We need not consider whether an indictment might be subject to a motion to
dismiss in the event that the privileged evidence constituted such a large proportion
of the evidence before the grand jury as to raise a substantial question of whether
the grand jury had sufficient competent evidence to establish probable cause. In this
case Judge Mishler noted at the argument on defendant's motion to dismiss that
extensive tapes and recordings were before the grand jury, referring to the episodes
in which, money was received allegedly in return for corrupt promises. (Tr. July 11,
1980 hearing 37).

(Id. at 941) Regarding Rep. Myers' claim that the indictment failed to state an offense, the court stated that it was irrelevant that no official act could be performed for a non-existent person:

The offense described by § 201 is complete upon a Congressman's corrupt acceptance of money in return for his promise to perform any official act. The elements of the offense are the receipt of money, the making of the promise and the corrupt purpose with which these things are done. United States v. Brewster, supra, 408 U.S. at 526-27. The promise does not cease to relate to an official act simply because the undercover agent offering the bribe knows that the subject of the promised legislative action is fictitious and that the promise will not actually be performed. The statute condemns the Congressman's actions and state of mind. His alleged promise to introduce private immigration bills is a promise to perform "any official act.” 18

U.S.C. 8 201(c). (Id. at 940) Rep. Myers' claim that section 201 was facially unconstitutional was likewise rejected by the circuit court:

Appellant challenges the facial validity of 201 on the grounds that the statute conflicts with the Speech or Debate Clause and the doctrine of separation of powers. These claims are wholly without merit in light of United States v. Brewster, 408 U.S. 501 (1972) and United States v. Johnson, supra. Those decisions squarely uphold the constitutional authority of Congress to enact $ 201, creating the offense of bribery, including bribery of a Member of Congress. The decisions recognize that the Speech or Debate Clause imposes significant limits on the prosecution of congressional bribery. Conduct that falls within the

broad category of legislative action may not be charged as
an offense under the statute, nor may evidence of a Mem-
ber's legislative action be offered in evidence against him.
United States o. Brewster, supra, 408 U.S. at 510; United
States v. Johnson, supra, 383 U.S. at 184-85; United States
V. Helstoski, 442 U.S. 477 (1979). But despite these limits,

the facial validity of § 201 is clear. (Id. at 937] Rep. Myers' argument that passage of section 201 violated the Punishment Clause was similarly dismissed. The court, which treated this argument as an attack on the constitutionality of section 201 as applied rather than on the section's constitutionality on its face, found that Brewster was dispositive of this challenge:

The argument that acceptance of a bribe by a Member of Congress was peculiarly a matter appropriate for punishment exclusively by each House of the Congress was vigorously made in the dissenting opinions in Brewster, 408 U.S. at 541-44 (Brenann, J., dissenting); id. 551-52, 563 (White, J., dissenting). The arguments focused primarily on the Speech or Debate Clause, relying on the Behavior Clause to show that immunity from Executive Branch prosecution did not insulate Members of Congress who corrupt the legislative process from the sanctions of their peers. In declining to find in the Speech or Debate Clause an immunity from prosecution for corrupt promises to take legislative action, the majority in Brewster necessarily rejected any contention that Congressional punishment

power in such matters was exclusive. (Id. at 937-938] The court found equally unpersuasive Rep. Myers' argument that trial on this indictment would impermissibly force him to either introduce evidence of his legislative acts or forego his right to present a full defense. The court stated that although the Speech or Debate Clause prevents the Government from questioning a Member about his legislative acts, “It does not prevent a Member from offering such acts in his own defense, even though he thereby subjects himself to cross-examination." [Id. at 942]

The court also held that section 201 was not unconstitutional as applied in this case. Rep. Myers had argued that if Government agents are allowed to manufacture opportunities for Members to accept bribes, the Government would be free to entice into crime those Members whose political viewpoints differed from those of the Administration, contrary to the separation of powers doctrine. The court responded to this argument by noting, "Any Member of Congress approached by agents conducting a bribery sting operation can simply say 'No'."' [Id. at 939) More important, should Congress decide that its Members were being subjected to targeting and harassment by the Exective branch, it could exempt its Members from the purview of the bribery laws. In this regard, the court stated:

If the public policy concerns that have been identified warrant additional restrictions on the prosecution of Members of Congress for bribery, such restrictions are matters for consideration by those with public policy responsibil

ities, administrators in the Executive Branch and ulti-
mately law-makers in the Legislative Branch. In Brewster
the Supreme Court pointed out that if that decision under-
estimated "the potential for harassment, the Congress, of
course, is free to exempt its Members from the ambit of
Federal bribery laws." 408 U.S. at 524. By the same token,
if the risks of a bribery sting operation outweigh its bene-
fits, Congress always has the power to make the more lim-
ited modification of redefining the offense to exclude, in
the case of Members of Congress or others, acceptance of
bribes offered by undercover agents of the Government.
With the policy choice thus fully within the control of Con-
gress, we cannot conclude that the separation of powers
doctrine creates a constitutional barrier to the law enforce-
ment technique selected by the Executive Branch.

9 Appellant also seeks to bolster his challenge to a bribery sting operation by con-
tending that a prosecution founded on this technique presents a political question
inappropriate for the Judicial Branch. This is simply another way of characterizing
the public policy issues that are available for resolution by Congress.

[Id. at 939] Further, the court held that the legislative history of section 201 failed to show that Congress did not intend to allow the statute to be used when Government agents establish fictitious undercover operations that ensnare Members of Congress.

Regarding Rep. Myers' claim that the references to legislative acts in the indictment rendered the indictment invalid, the court stated that such references were made "for the entirely permissible purpose of detailing the nature of the corrupt promise allegedly made.” (Id. at 937] This indictment, said the court, "contemplates no inquiry into the taking of any legislative action or the motivation for it.(Id.]

Rep. Myers' argument that the indictment presented a nonjusticiable political question was disposed of by the court in its discussion of the public policy issues inherent in deciding whether undercover agents should be allowed to entice Members of Congress to accept bribes. (See footnote 9, quoted above.]

On October 10, 1980, Rep. Myers filed a petition for writ of certiorari with the U.S. Supreme Court. [No. 80-527] The petition was denied on November 6, 1980. [449 U.S. 826]

On July 10, 1980 (the same day he filed his original motion to dismiss the indictment on a variety of grounds), Rep. Myers also filed a motion to dismiss on the grounds of prejudicial pre-indictment publicity and Government misconduct. Regarding publicity, he alleged that top officials of the Justice Department and the FBI, as well as members of the United States Attorney's Office and other members of the Government involved with ABSCAM, had publicly discussed such matters as: (1) the relative strength of the Government's case; (2) the character, motivation, and guilt of the defendant; (3) the rulings a judge should make on various legal issues, such as the entrapment defense; (4) the legality of the investigative procedures used; and (5) the proper interpretation of the videotapes. Rep. Myers relied on Berger v. United States, 295 U.S. 78 (1934) in arguing that this pretrial publicity would deny him his due process right to a fair trial, and that the indictment therefore

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