In order to effect a workable separation of powers scheme, Madison deemed it essential "that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others." The Federalist No. 51. While this principle was compromised with regard to members of the judiciary-being balanced by protections of appointment for life and against diminution of compensation-it was strictly observed in the constitutional formula for selection of members of Congress. Power to strip a member of Congress of elective office was committed to neither the executive nor the judiciary. It was explicitly reserved to Congress itself.

C

The possibility of the executive utilizing the threat of prosecution to force the resignation of a congressional representative involves potentially dangerous political consequences. It represents an opportunity for an assault on the composition and integrity of a coordinate branch of government. Taken together, investigative techniques such as those used in the Abscam cases, see United States v. Myers, 688 F.2d 817 (2d Cir.1982), the enormous spectrum of criminal laws that can be violated, the powerful investigative and prosecutorial machine available to the executive, and forced resignations through plea bargaining would provide an intolerable threat to a free and independent Congress.

Even where federal prosecutors properly adhere to their role, a member of Congress found guilty of criminal conduct may be expelled, see 126 Cong. Rec. H10289-309 (daily ed. Oct. 2, 1980) (expulsion of Congressman Myers). Alternatively he may resign to avoid expulsion, see 128 Cong. Rec. S1454-69 (daily ed. March 3, 1982), S1999 (daily ed. March 11, 1982) (resignation of Senator Williams) or the embarrassment of serving under the cloud of conviction. Such decisions, however, are for Congress or the Congressman, not the executive. Cf. United States v. Diggs, 613 F.2d 988 (D.C.Cir. 1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980); 126 Cong. Rec. H4407 (daily ed. June 3, 1980); N.Y. Times, June 4, 1980, at A16. [609] It is true that the executive and its law enforcement personnel may use a private hint of prosecution in an attempt to manipulate subservient members of Congress or drive. out of office congressional critics. Since this power exists in fact it may be argued that there is little to be gained by preventing open and explicit plea agreements to force resignations. The answer is twofold. First, the courts cannot acquiesce in or place their imprimatur on an impropriety. Second, it cannot be assumed that future prosecutors will flout the law once such conduct has been declared illegal by the courts.

It matters not that in this case the prosecutor's intention was benign. Availability of the technique and the possibilities of its abuse cannot be tolerated. "The accretion of dangerous power does not come in a day. It does come, however, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority." Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 593-94, 72 S.Ct. 863, 888-89, 96

L.Ed. 1153 (Frankfurter, J., concurring). The prosecutorial practice of dealing in legislative office in negotiations with congressional defendants must be arrested before its potential for abuse is realized.

III

[4] The defendant's voluntary consent cannot cure those portions of the plea bargain condemned by the Constitution. Even arms length negotiated commercial contracts between persons of equal power are void if they offend public policy. See Restatement (Second) of Contracts §§ 178, 179 (1980).

[5] The constitutional protections of legislators and candidates exist not for their personal benefit but to safeguard the rights of the people. United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972); Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed.2d 1019 (1951); Bullock v. Carter, 405 U.S. 134, 143-44, 92 S.Ct. 849, 855-856, 31 L.Ed.2d 92 (1972). A member of Congress may not barter away constitutional protections which belong not to him but to his constituents.

IV

[6] The sentencing court is obliged to carefully consider all the terms of a plea to ensure that they are lawful. Rule 11(e)(3) of the Federal Rules of Criminal Procedure provides that if a court accepts a plea agreement it must inform the defendant "that it will embody in the judgment and sentence the dispostion provided for in the plea agreement." The court thus becomes a party to the plea arrangement when it issues a judgment of sentence. By incorporating a provision in its decree, the court places upon it the approval of the judicial office. For the reasons already stated a court no more than the executive has power to involve itself in the removal of congressional officers nor can it foreclose the candidacy of contenders for future office.

Only one case has been found suggesting a contrary result, United States v. Tonry, 605 F.2d 144 (5th Cir.1979). Tonry was a United States Representative who pleaded guilty to several violations of federal election law. As a condition of probation the trial court enjoined the defendant from running for office or engaging in political activity, both federal and state. On appeal the defendant unsuccessfully challenged the probation condition as it pertained to state office, although he did not question the district court's power to forbid him from running for federal office. 605 F.2d at 146 n. 2, 147. Insofar as the opinion might be construed to sanction a judicial limitation on the right of a defendant to run for Congress, it cannot be followed.

In a case somewhat comparable to Tonry, the Second Circuit invalidated a condition of probation requiring the defendant, a lawyer, to resign from the bar. The court reasoned that established procedures existed for disbarment, and that it would be unwarranted for the federal courts to inject themselves into that arena. United States v. Pastore, 537 F.2d 675 (2d Cir.1976). Even greater circumspection must be ob[610]served by the courts with regard to congressional office-holders and aspirants.

V

The defendant's plea remains valid with regard to the charges to which he has pleaded and the agreement of the government not to pursue other criminal action. That aspect of the plea which required the defendant to resign from office and terminate his reelection campaign offends the Constitution, is contrary to public policy, and compromises the integrity of this court. It is therefore void and forms no part of the judgment of sentence. So ordered.

21-618 0-83-48

United States Court of Appeals, District of Columbia Circuit

Argued March 19, 1982

Judgment Issued Dec. 23, 1982

Opinions Issued Feb. 4, 1983

Fourteen Republican members of the House of Representatives filed suit against the House Democratic leadership alleging that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they were proportionally owed. On defendants' motion to dismiss, the United States District Court for the District of Columbia, 524 F.Supp. 519, Louis F. Oberdorfer, J., dismissed the complaint, and plaintiffs appealed. The Court of Appeals, James F. Gordon, Senior District Judge, sitting by designation, held that: (1) plaintiffs had standing to bring their complaint, and (2) the Court of Appeals would exercise its remedial discretion to withhold equitable and declaratory relief in order to dismiss the action, since the separation-of-powers concerns were sufficient to conclude that it should not adjudicate the controversy.

Affirmed.

Bork, Circuit Judge, concurred and filed opinion.

1. Constitutional Law 42.3(3)

Fourteen Republican members of the House of Representatives had standing to bring their action against the House Democratic leadership alleging that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they were proportionally owed where the Republicans alleged that as legislators and as voters their political power was diluted, they raised additional issues about First Amendment rights to free association and free speech, and raised a plausible claim that Democrats added the additional requirement of majority party membership to the qualifications for full House membership. U.S.Č.A. Const.Amend. 1.

2. Constitutional Law 70.1(12)

Article I of the United States Constitution simply means that neither the federal courts nor the executive branch may tell Congress what rules it must adopt, but it does not alter the courts' judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity. U.S.C.A.Const. Art. 1, § 1 et seq.

3. Constitutional Law 70.1(12)

Court of Appeals would invoke its remedial discretion to withhold equitable and declaratory relief in order to dismiss action brought by 14 Republican members of the House of Representatives against the House Democratic leadership contending that the Democrats systematically discriminated against them by providing them fewer seats on House committees and subcommittees than they were proportionally owed, since separation-of-powers concerns were sufficient for conclusion that Court of Appeals should not adjudicate the controversy.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 81-01722).

William E. Dannemeyer, Fullerton, Cal., of the bar of the Supreme Court of California by special leave of the Court pro hac vice and James F. Schoener, Birmingham, Mich., for appellants.

Stanley M. Brand, Washington, D.C., Gen. Counsel to the Clerk, U.S. House of Representatives with whom Steven R. Ross, Washington, D.C., Asst. Counsel to the Clerk, U.S. House of Representatives was on brief, for appellees.

Before BORK, Circuit Judge, ROBB, Senior Circuit Judge and JAMES F. GOR[1167]DON,* Senior District Judge for the Western District of Kentucky.

Opinion for the Court Filed by Senior District Judge JAMES F. GORDON.

Concurring opinion filed by Circuit Judge BORK.
JAMES F. GORDON, Senior District Judge:

Fourteen Republican Members of the House of Representatives have sued the House Democratic leadership, the Democratic Steering and Policy Committee, and the Democratic Caucus.1 The Republicans contend that the Democrats systematically discriminated against them by providing them with fewer seats on House committees and subcommittees than they are proportionally owed. The district court dismissed the complaint, Vander Jagt v. O'Neill, 524 F.Supp. 519 (D.D.C.1981), holding that the appellants' suit was barred by the Speech or Debate Clause and by the provision of the Constitution which confers upon the House the power "to determine the Rules of its Proceedings." Art. I, § 5, cl. 2. We affirm on somewhat different grounds.

Appellants claim that the Democrats diluted the power and influence of Republican House members, and thus the political rights of voters in Republican congressional districts as well. This happened after members of the Democratic Caucus met in the weeks before the opening of the 97th Congress and determined the

The Honorable James F. Gordon, United States District Court for the Western District of Kentucky, sitting by designation pursuant to 28 U.S.C. § 294(d).

The Republicans sue as members of the House, as members of various committees of the House, and as individual voters. They also sue as representatives of three classes: (1) the class of all Republican members of the House, (2) the class of all members of certain committees of the House, and (3) the class of all voters in congressional districts represented by Republican members. Appellees are Thomas P. O'Neill, Jr., the Speaker of the House; Jim Wright, the Majority Leader; Gillis W. Long, Chairman of the Democratic Caucus; the Democratic Steering and Policy Committee of the House of Representatives; and, the Democratic Caucus, which consists of all Democratic members of the House of Representatives. Appellees O'Neill, Wright, and Long are sued in their various capacities as House members and Democratic leaders.