tional priorities pursuant to Section 105(8)(B) of P.L. 96- On November 30, 1982, President Reagan sent a Memorandum to Administrator Gorsuch instructing her to withhold from the Subcommittee any documents from open law enforcement files assembled as part of the Executive Branch's efforts to enforce the Comprehensive Environmental Response, Compensation and Liability Act of 1980. On December 2, 1982, the return date of the subpoena, Administrator Gorsuch appeared before the Subcommittee. She advised the Subcommittee that the EPA had begun to gather for production all documents responsive to the subpoena, but ". . . sensitive documents found in open law enforcement files will not be made available to the Subcommittee." 149 Cong.Rec. H10037. The Committee passed a Resolution reporting the matter to the full House of Representatives on December 10, 1982. The full_House cited Administrator Gorsuch for contempt of Congress on December 16, 1982. The initial complaint in this case was filed on the same day, one day before the contempt resolution was certified to the United States Attorney for the District of Columbia for presentment to the grand jury. To date, the United States Attorney has not presented the contempt citation to the grand jury for its consideration. Section 192 of Title 2 of the United States Code provides that a subpoenaed witness who refuses "to produce papers upon any matter under inquiry before either House . . . or any committee of either House of Congress", shall be guilty of a misdemeanor "punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." Once an individual has been found in contempt by either House of Congress, a contempt order is presented to the President of the Senate or the Speaker of the House of Representatives for certification. 2 U.S.C. § 194. The President or Speaker in turn delivers the contempt citation to the appropriate United States Attorney. The United States Attorney is then required to bring the matter before the grand jury Id. [152] The Executive Branch, through the Justice Department, has chosen an alternate route, however, in bringing this civil action against the House of Representatives and individual members of the Legislative Branch. Plaintiffs ask the Court to resolve the controversy by deciding whether Administrator Gorsuch acted lawfully in withholding certain documents under a claim of executive privilege. Defendants raise several challenges to the propriety of plaintiffs' cause of action. Included among defendants' grounds for dismissal are lack of subject matter jurisdiction, lack of standing, and the absence of a "case or controversy" as required by Article III, § 2 of the United States Constitution. In addition, defendants claim that they are immune from suit under the Speech and Debate Clause, Article, I, § 6, cl. 1. Plaintiffs have addressed and opposed each of these threshold challenges. The Legislative and Executive Branches of the United States Government are embroiled in a dispute concerning the scope of the congressional investigatory power. If these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege. Plaintiffs request the Court to provide immediate answers, in this civil action, to the constitutional questions which fuel this controversy. Defendants, however, have indicated a preference for established criminal procedures in their motion to dismiss this case. Assuming there are no jurisdictional bars to this suit, therefore, the Court must initially determine whether to resolve the constitutional controversy in the context of a civil action, or defer to established statutory procedures for deciding challenges to congressional contempt citations. [1] The statutory provisions concerning penalties for contempt of Congress, 2 U.S.C. § 192 and § 194, constitute "an orderly and often approved means of vindicating constitutional claims arising from a legislative investigation." Sanders v. McClellan, 463 F.2d 894, 899 (D.C.Cir.1972). Under these provisions, constitutional claims and other objections to congressional investigatory procedures may be raised as defenses in a criminal prosecution. See Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Ansara v. Eastland, 442 F.2d 751 (D.C.Cir.1971); United States v. Tobin, 306 F.2d 270, 276 (D.C.Cir.1962). Courts have been extremely reluctant to interfere with the statutory scheme by considering cases brought by recalcitrant witnesses seeking declaratory or injunctive relief. See, e.g., Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Ansara v. Eastland, 442 F.2d at 754. Although the Court of Appeals for this Circuit has entertained one civil action seeking to block compulsory legislative process, that action was brought by the Executive Branch to prevent a private party from complying with a congressional subpoena. See United States v. American Telephone and Telegraph Company, 551 F.2d 384 (D.C.Cir.1976). Significantly, therefore, in that case the Executive Branch was not able to raise its claim of executive privilege as a defense to criminal contempt proceedings. [2-4] Courts have a duty to avoid unnecessarily deciding constitutional issues. United States v. Rumely, 345 U.S. 41, 45-46, 73 S.Ct. 543, 545-546, 97 L.Ed. 770 (1952). When constitutional disputes arise concerning the respective powers of the Legislative and Executive Branches, judicial intervention should be delayed until all possibilities for settlement have been exhausted. See United States v. American Telephone and Telegraph, 551 F.2d at 393-395. Judicial restraint is essential to maintain the delicate balance of powers among the branches established by the Constitution. See id. Since the controversy which has led to United States v. House of Representatives clearly raises difficult constitutional questions in the context of an intragovernmental dispute, the Court should not address these issues until circumstances indicate that judicial intervention is necessary. [153] The gravamen of plaintiffs' complaint is that executive privilege is a valid defense to congressional demands for sensitive law enforcement information from the EPA. Plaintiffs have, thus, raised this executive privilege defense as the basis for affirmative relief. Judicial resolution of this constitutional claim, however, will never become necessary unless Administrator Gorsuch becomes a defendant in either a criminal contempt proceeding or other legal action taken by Congress. See, e.g., Ansara v. Eastland, 441 F.2d at 753-754. The difficulties apparent in prosecuting Administrator Gorsuch for contempt of Congress should encourage the two branches to settle their differences without further judicial involvement. Compromise and cooperation, rather than confrontation, should be the aim of the parties. The Court, therefore, finds that to entertain this declaratory judgment action would be an improper exercise of the discretion granted by the Declaratory Judgment Act, 28 U.S.C. § 2201. See Hanes Corp v. Millard, 531 F.2d 585, 591 (D.C.Cir.1976). In light of this determination, the Court will not address the additional grounds for dismissal raised by defendants. Accordingly, defendants' motion to dismiss is granted. 692 F.2d 823 (1982) UNITED STATES OF AMERICA, APPELLEE V. MICHAEL O. MYERS, ANGELO J. ERRICHETTI, LOUIS JOHANSON, AND HOWARD L. CRIDEN, DEFENDANTS-APPELLANTS UNITED STATES OF AMERICA, APPELLEE V. FRANK THOMPSON, JR. AND JOHN M. MURPHY, DEFENDANTS APPELLANTS UNITED STATES OF AMERICA, APPELLEE V. RAYMOND F. LEDERER, DEFENDANT-APPELLANT Nos. 904 to 905, 906, 907, 840, 841 and 855, Dockets 81-1342 to 811347 and 81-1446 United States Court of Appeals, Second Circuit Argued April 5, 1982 Decided Sept. 3, 1983 Rehearing Denied in No. 81-1345 Nov. 17, 1982 Defendants appealed from their convictions in the United States District Court for the Eastern District of New York, George C. Pratt, J., in Abscam prosecution. The Court of Appeals, Newman, Circuit Judge, held that: (1) Government's involvement in Abscam operation was not so excessive as to violate due process; (2) any ambiguity arising from the manner in which bribes were offered in Abscam operation was due to observance of ground rules set by defendant congressman and did not violate due process; (3) it was no defense that defendant congressman's corrupt promise could not have been carried out due to the fictitious nature of the persons alleged to be seeking assistance; and (4) defendant congressman could not be convicted of violation of statute prohibiting members of Congress from receiving compensation for services rendered in relation to any proceeding in which the United States in interested merely be accepting money for giving advice about immigration. Affirmed in part and reversed and remanded in part. See also D.C. 527 F. Supp. 1206 1. Criminal Law 37(3) Entrapment defense exonerates a defendant who engages in criminal behavior when the activity of government agents implants in the mind of an innocent person the disposition to commit the alleged offense and induces its commission; but the defense of en trapment is not established simply because government agents afford opportunities or facilities for the commission of the offense. 2. Criminal Law 772(6) When an entrapment defense is raised by evidence of inducement, either through cross-examination or affirmative evidence, a defendant is entitled to have a court assess whether the record contains sufficient evidence from which a reasonable jury can conclude beyond a reasonable doubt that the prosecution has proved the defendant's predisposition to commit the offense. Defendant who fails to assert entrapment as a factual defense at his trial cannot assert it as a legal defense to his conviction. Evidence in Abscam prosecution entitled jury to find defendant congressman's predisposition to accept a bribe beyond a reasonable doubt. 18 U.S.C.A. § 201. Government's involvement in Abscam operation was not so excessive as to violate due process. U.S.C.A. Const. Amend. 5; 18 U.S.C.A. § 201. District court's finding at due process hearing in Abscam prosecution that defendant congressmen were not "playacting" when they accepted bribes was not clearly erroneous. 18 U.S.C.A. § 201; U.S.C.A. Const. Amend. 5. Lack of intent to keep promise made for a bribe is not a defense to a charge of corrupt receipt of money by a public official. 18 U.S.C.A. § 201. Prompt acquiescence shows predisposition to accept a bribe and precludes an entrapment defense, regardless of whether the promise of official acts is intended to be kept. 18 U.S.C.A. § 201. 9. Constitutional Law 257.5 Government agents' coaching of congressman during Abscam operation, assuming such coaching occurred, was not so outrageously coercive as to violate due process. 18 U.S.C.A. § 201; U.S.C.A. Const. Amend. 5. Any ambiguity arising from the manner in which bribes were offered to congressmen in Abscam operation was due to observance of ground rules set by the congressmen, and did not violate due process. 18 U.S.C.A. § 201; U.S.C.A. Const. Amend. 5. |