author: Mr. Chief Justice Burger Me. Justice Brennan,

text:
    TORRES v. PUERTO RICO
    No. 77-1609.
    Argued January 10, 1979 —
    Decided June 18, 1979

      Burger, C. J., delivered the opinion of the Court, in which White, Powell, RehNquist, and SteveNS, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which Stewart, Marshall, and BlackmuN, JJ., joined, post, p. 474.

      Joseph Remcho argued the cause for appellant. With him on the briefs' were Celedonia Medin Lozada Hernandez and Celedonia Medin Lozada Gentile.

      Roberto Armstrong, Jr., Deputy Solicitor General of Puerto Rico, argued the cause for appellee. With him on the brief was Hector A. Colon Cruz, Solicitor General.

        Bruce J. Ennis filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

I

In 1975, the Commonwealth of Puerto Rico enacted legislation authorizing its police to search the luggage of any person arriving in Puerto Rico from the United States. Pub. Law 22, P. R. Laws Ann., Tit. 25, § 1051 et seq. (Supp. 1977). The “Statement of Motives” in the preamble to the statute indicates that it was enacted in response to a serious increase in the importation of firearms, explosives, and narcotics from the mainland, and a concomitant rise in crime on the island. As construed by the Puerto Rico Supreme Court, Public Law 22 does not require the police to have probable cause to believe that they will find contraband before they search baggage. However, it does not appear that the luggage of all travelers arriving from the mainland is subject to this kind of search.

Appellant Terry Torres, a resident of Florida, arrived at San Juan’s Isla Verde Airport aboard a nonstop commercial flight from Miami. An officer’s suspicions were aroused when he observed that Torres seemed nervous, and kept looking at an armed, uniformed officer stationed nearby. There was, however, no articulable reason to suspect that Torres was carrying contraband. When Torres claimed his baggage, the officer stopped him, identified himself as an agent of the Criminal Investigation Bureau, and presented Torres with a card describing the provisions of Public Law 22. The uniformed officer approached at the same time; Torres was taken with his luggage to the Bureau’s office at the airport.

Once there, the officer asked Torres if he understood what was written on the card. Torres said that he did, but he objected to having his luggage searched and asked to telephone his uncle, a Puerto Rico attorney. The officer refused to allow him to place the call, stating that he could contact a lawyer if it appeared that he had committed a crime. Torres then yielded to the search and unlocked his bags.

The search revealed one ounce of marihuana, a wooden pipe bearing marihuana residue, and approximately $250,000 in cash. Torres was charged, tried, and convicted of violating § 404 of the Controlled Substances Act of Puerto Rico, P. R. Laws Ann., Tit. 24, § 2404 (Supp. 1977). A sentence of from one to three years’ imprisonment was imposed.

On appeal to the Supreme Court of Puerto Rico, Torres contended that the search pursuant to Public Law 22 violated the federal constitutional prohibition against unreasonable searches. Only seven of the eight justices of the Puerto Rico Supreme Court participated in considering the appeal; four of the seven concluded that Public Law 22 violated the Fourth Amendment. Three justices held Public Law 22 constitutional. Article V, § 4, of the Puerto Rico Constitution provides that no law may be held unconstitutional except by a majority of all the members of the Supreme Court. Accordingly, there being only a minority of the justices so holding, the court entered a judgment stating:

“The search of appellant’s belongings being based on the provisions of Act No. 22 of August 6, 1975, and considering the absence of the majority vote required by the Constitution to annul said Act, the judgment appealed is affirmed.” (Emphasis added.)

We noted probable jurisdiction. 439 U. S. 815 (1978).

II

Decisions of this Court early in the century limited the application of the Constitution in Puerto Rico. In Downes v. Bidwell, 182 U. S. 244 (1901), we held that Congress could establish a special tariff on goods imported from Puerto Rico to the United States, and that the requirement that all taxes and duties imposed by Congress be uniform throughout the United States, Art. I, § 8, cl. 1, was not applicable to the island. Mr. Justice Edward White’s concurring opinion announced the doctrine that the United States could acquire territory without incorporating it into the Nation, and that unincorporated territory was not subject to all the provisions of the Constitution. 182 U. S., at 287-344. In support of this doctrine, the concurring opinion emphasized that full application of the Constitution to all territory under the control of the United States would create such severe practical difficulties under certain circumstances as to prohibit the United States from exercising its constitutional power to occupy and acquire new lands. Id., at 305-311.

The distinction between incorporated and unincorporated territories was first adopted by a majority of the Court in Dorr v. United States, 195 U. S. 138 (1904); the Court sustained the refusal of the territorial government of .the Philippines to seek indictments by grand jury or afford petit juries in criminal cases. The Court emphasized that imposition of the jury system on people unaccustomed to common-law traditions “may be to work injustice and provoke disturbance rather than to aid the orderly administration of justice.” Id., at 145-146, 148. It also suggested that the constitutional guarantees as to juries should not be construed so as to hamper Congress in exercising its constitutional authority to govern the territories. Id., at 148. The doctrine that the Constitution does not guarantee grand and petit juries in unincorporated territories was applied to Puerto Rico, notwithstanding that its residents theretofore had been granted United States citizenship, in Balzac v. Porto Rico, 258 U. S. 298 (1922).

On the other hand, this Court has held or otherwise indicated that Puerto Rico is subject to the First Amendment Speech Clause, id., at 314; the Due Process Clause of either the Fifth or the Fourteenth Amendment, Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 668-669, n. 5 (1974); and the equal protection guarantee of either the Fifth or the Fourteenth Amendment, Examining Board v. Flores de Otero, 426 U. S. 672, 599-601 (1976). In Califano v. Torres, 435 U. S. 1, 4 n. 6 (1978) (per curiam), we assumed without deciding that the constitutional right to travel extends to the Commonwealth.

Congress may make constitutional provisions applicable to territories in which they would not otherwise be controlling, Mullaney v. Anderson, 342 U. S. 415, 419-420 (1952). Congress generally has left to this Court the question of what constitutional guarantees apply to Puerto Rico. Examining Board v. Flores de Otero, supra, at 590. However, because the limitation on the application of the Constitution in unincorporated territories is based in part on the need to preserve Congress’ ability to govern such possessions, and may be overruled by Congress, a legislative determination that a constitutional provision practically and beneficially may be implemented in a territory is entitled to great weight.

Both Congress’ implicit determinations in this respect and long experience establish that the Fourth Amendment’s restrictions on searches and seizures may be applied to Puerto Rico without danger to national interests or risk of unfairness. From 1917 until 1952, Congress by statute afforded equivalent personal rights to the residents of Puerto Rico. Act of Mar. 2, 1917, § 2, cl. 13-14, 39 Stat. 952, repealed, Act of July 3, 1950, §5 (1), 64 Stat. 320 (effective July 25, 1952). When Congress authorized the people of Puerto Rico to adopt a constitution, its only express substantive requirements were that the document should provide for a republican form of government and “include a bill of rights.” Act of July 3, 1950, § 2, 64 Stat. 319, 48 U. S. C. § 731c. A constitution containing the language of the Fourth Amendment, as well as additional language reflecting this Court’s exegesis thereof, P. R. Const., Art. II, § 10, was adopted by the people of Puerto Rico and approved by Congress. See Act of July 3, 1952, 66 Stat. 327. That constitutional provision remains in effect.

We conclude that the constitutional requirements of the Fourth Amendment apply to the Commonwealth. As in Examining Board v. Flores de Otero, supra, at 601, we have no occasion to determine whether the Fourth Amendment applies to Puerto Rico directly or by operation of the Fourteenth Amendment.

Ill

The search of appellant’s baggage pursuant to Public Law 22 did not satisfy the requirements of the Fourth Amendment as we heretofore have construed it. First, the grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests. Delaware v. Prouse, 440 U. S. 648, 653-655 (1979). The governmental interests to be served in the detection or prevention of crime are subject to traditional standards of probable cause to believe that incriminating evidence will be found. Yet Public Law 22 does not require, and the officers who made the search challenged here did not have, probable cause for such belief.

Second, a warrant is normally a prerequisite to a search unless exigent circumstances make compliance with this requirement impossible. Mincey v. Arizona, 437 U. S. 385, 393-394 (1978). Yet, Public Law 22 requires no warrant, and none was obtained before appellant’s bags were searched.

IV

Apparently recognizing that the search of appellant's luggage pursuant to Public Law 22 cannot be sustained under our previous decisions, Puerto Rico urges us not to be bound in “the conceptual prison of stare decisis.” It suggests a novel exception to the normal Fourth Amendment requirements of a warrant and probable cause, referring us to decisions of this and other courts which have sustained (a) searches by the Border Patrol at a “functional equivalent” of the international border of the United States, (b) state inspections of shipments of goods in furtherance of health and safety regulations, (c) the use of airport metal detectors, and (d) certain searches on military bases. The Commonwealth asserts that these decisions recognize a variety of “intermediate borders,” analogous to the international border of the United States, at which searches are permitted even though normal Fourth Amendment requirements are not satisfied.

Puerto Rico then asks us to recognize an “intermediate border” between the Common wealth and the rest of the United States. In support of this proposal it points to its unique political status, and to the fact that its borders as an island are in fact international borders with respect to all countries except the United States. Finally, Puerto Rico urges that because of the seriousness of the problems created by an influx of weapons and narcotics, it should have the same freedom to search persons crossing its “intermediate border” as does the United States with respect to incoming international travelers.

The decisions on which Puerto Rico seeks to erect its theory of “intermediate boundaries” do not reflect any geographical element of Fourth Amendment doctrine, however, but are based on a variety of considerations which have no bearing on this case. Public Law 22 cannot be justified by any analogy to customs searches at a functional equivalent of the international border of the United States. The authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry. United States v. Ramsey, 431 U. S. 606, 620 (1977); Almeida-Sanchez v. United States, 413 U. S. 266, 272 (1973); Carroll v. United States, 267 U. S. 132, 154 (1925). Puerto Rico has no sovereign authority to prohibit entry into its territory; as with all international ports of entry, border and customs control for Puerto Rico is conducted by federal officers. Congress has provided by statute that Puerto Rico must accord to all citizens of the United States the privileges and immunities of its own residents. Act of Aug. 5, 1947, § 7, 61 Stat. 772,48 U. S. C. § 737. See Mullaney v. Anderson, 342 U. S., at 419 n. 2.

Public Law 22 also may not be sustained by analogy to state inspection provisions designed to implement health and safety legislation. By a vote of four to three the Puerto Rico Supreme Court rejected appellee’s attempt to characterize Public Law 22 as a health and safety measure, finding instead that it was enacted for the purpose of enforcing criminal laws. In any event, health and safety inspections are subject to the Fourth Amendment warrant requirement unless they fall within one of its recognized exceptions, and must be based on a “plan containing specific neutral criteria.” Marshall v. Barlow’s, Inc., 436 U. S. 307, 312, 323 (1978).

Puerto Rico’s position boils down to a contention that its law enforcement problems are so pressing that it should be granted an exemption from the usual requirements of the Fourth Amendment. Although we have recognized exceptions to the warrant requirement when specific circumstances render compliance impracticable, we have not dispensed with the fundamental Fourth Amendment prohibition against unreasonable searches and seizures simply because of a generalized urgency of law enforcement. Almeida-Sanchez v. United States, supra, at 273-275; United States v. Di Re, 332 U. S. 581, 595 (1948).

In any event, Puerto Rico’s law enforcement needs are indistinguishable from those of many states. Puerto Rico is not unique because it is an island; like Puerto Rico, neither Alaska nor Hawaii are contiguous to the continental body of the United States. Moreover, the majority of all the states have borders which coincide in part with the international frontier of the United States; virtually all have international airport facilities subject to federal customs controls.

We therefore hold that the search pursuant to Public Law 22 violated constitutional guarantees; accordingly, evidence obtained in the search of appellant’s luggage should have been suppressed. The judgment of the Supreme Court of Puerto Rico is therefore reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Me. Justice Brennan,

with whom Mr. Justice Stewart, Mr. Justice Marshall, and Mr. Justice Blackmun join,

concurring in the judgment.

Appellant’s conviction of violating the Puerto Rico Controlled Substances Act was based on evidence discovered when police, admittedly without probable cause, searched appellant’s luggage after he arrived in Puerto Rico from Florida. The Supreme Court of Puérto Rico has construed Public Law 22 to authorize such searches without probable cause.

I concur in the Court’s holding that the Fourth Amendment applies in full force to Puerto Rico, that the search of appellant’s luggage without a warrant based on probable cause violated the Fourth Amendment, that Public Law 22 is unconstitutional insofar as it purports to authorize what the Fourth Amendment prohibits, and that the evidence discovered in the unconstitutional search therefore must be suppressed.

Appellee concedes that the Fourth Amendment applies to the Commonwealth of Puerto Rico, Brief for Appellee 12, citing Examining Board v. Flores de Otero, 426 U. S. 572, 599 (1976); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 668 n. 5 (1974). Whatever the validity of the old cases such as Downes v. Bidwell, 182 U. S. 244 (1901), Dorr v. United States, 195 U. S. 138 (1904), and Balzac v. Porto Rico, 258 U. S. 298 (1922), in the particular historical context in which they were decided, those cases are clearly not authority for questioning the application of the Fourth Amendment— or any other provision of the Bill of Rights — to the Commonwealth of Puerto Rico in the 1970’s. As Mr. Justice Black declared in Reid v. Covert, 354 U. S. 1, 14 (1957) (plurality-opinion) : “[N] either the cases nor their reasoning should be given any further expansion. The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government.”

       Public Law 22, §1, P. R. Laws Ann., Tit. 25, §1051 (Supp. 1977), provides:
      “The Police of Puerto Rico is hereby empowered and authorized to inspect the luggage, packages, bundles, and bags of passengers and crew who land in the airports and piers of Puerto Rico arriving from the United States; to examine cargo brought into the country, and to detain, question, and search those persons whom the Police have ground to suspect of illegally carrying firearms, explosives, narcotics, depressants or stimulants or similar substances.”

       Torres made an untimely motion for reconsideration in the Puerto Rico Supreme Court, asserting that the application of Art. V, § 4, to his appeal violated federal constitutional guarantees of due process. Presumably because of the untimeliness, the court denied the motion without opinion.
      Torres seeks to renew this contention here. Since the judgment of conviction must be reversed because of the invalidity of the search, see infra, at 471-474, we need not address the issue.
      The Commonwealth suggests that its Supreme Court should be allowed to address this issue because if it were to invalidate the special majority-vote requirement, it would then reverse appellant’s conviction in accordance with the views of the majority of the justices who participated. We see no purpose in requiring the Puerto Rico Supreme Court to address a second federal constitutional issue which could not affect our holding.

       The Commonwealth has not denied that it is subject to the constitutional prohibition against unreasonable searches. However, even an explicit concession on this point would not “ 'relieve this Court of the performance of the judicial function’ ” of deciding the issue. Sibron v. New York, 392 U. S. 40, 58 (1968), quoting Young v. United States, 315 U. S. 257, 258 (1942).

       Recently, we made clear that once a locked trunk was seized and impounded incident to an arrest there was no exigency justifying forcibly opening the locked trunk without a search warrant. United States v. Chadwick, 433 U. S. 1, 15 (1977). There was no suggestion in Chadwick and there is no suggestion here that the officers had grounds to believe that appellant’s bags contained an “immediately dangerous instrumentality.” See id., at 15 n. 9.

       Use of airport metal detectors with respect to passengers boarding aircraft and searches of persons entering military bases involve considerations not relevant to this case.

      Four of the eight members of the Supreme Court of Puerto Rico were of the opinion that Public Law 22 as so construed violated the Fourth Amendment of the Federal Constitution. See ante, at 468. But Art. V, §4, of the Puerto Rico Constitution provides that no law shall be held unconstitutional by the Supreme Court of Puerto Rico except by a majority of the total number of justices of which the court is composed. Appellant argues that this requirement violates the Supremacy Clause and the Due Process Clause of the Federal Constitution. In light of our resolution of the merits of appellant’s search-and-seizure claim, we need not pass on these contentions. Cf. Ohio ex rel. Bryant v. Akron Park Dist., 281 U. S. 74 (1930).
      The Commonwealth’s discussion of the impact of Art. V, §4, on this ease, however, implicitly suggests a claim that this “super-majority” provision constitutes an adequate and independent n.onfederal ground supporting the judgment reached by the Puerto Rico Supreme Court. This cannot be. The provision neither supplies an independent substantive basis for the decision, nor controls the parties’ conduct of the litigation. It affects only the internal “working rules” of the court. While such rules might affect the decision of cases, they cannot be adequate grounds in support of those decisions.


source: Caselaw Access Project

author: Me. Chief Justice Burger Mr. Justice Stevens, Mr. Justice Brennan,

license: Public Domain

text:
    UNITED STATES v. HELSTOSKI
    No. 78-349.
    Argued March 27, 1979 —
    Decided June 18, 1979

      BurgeR, C. J., delivered the opinion of the Court, in which White, Marshall, BlacicmuN, and RehNquist, JJ., joined. SteveNS, J., filed an opinion concurring in part and dissenting in part, in which Stewart, J., joined, post, p. 494. BreNNAN, J., filed a dissenting opinion, post, p. 498. Powell, J., took no part in the consideration or decision of the case.

      Solicitor General McCree argued the cause for the United States. With him on the brief were Assistant Attorney General Heymann, Deputy Solicitor General Frey, and Louis M. Fischer.

      Morton Stavis argued the cause for respondent. With him on the briefs was Louise Halper.

      Stanley M. Brand argued the cause for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al. as amici curiae. With Mr. Brand on the brief was Neal P. Rutledge.

   Me. 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.

I

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 transcripts of relevant testimony presented to other grand juries.

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 exchanges:

“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 this.
“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, you understand 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 any circumstances.”

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 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 Fifth0, Amendment “and on further grounds that to answer that question would violate my rights under the Constitution.”

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 and declined to answer further questions or to produce documents. He also declined to produce a copy of an insert from the Congressional Record, saying “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 rebanee upon the Speech or Debate Clause, Helstoski earlier had indicated an awareness of another aspect of the constitutional privileges afforded Congressmen. 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.

At his 10th, and final, appearance before a grand jury, Hel-stoski 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.

II

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 its proffer.

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 act on the part of the defendant, Henry Helstoski, derived from any source and for any purpose.” (Emphasis added.)

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 proceeding.
“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 evi-dentiary 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), cert. denied, 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, 527 (1972), prohibiting the introduction of evidence as to how a Congressman acted on, voted on, or resolved 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 and trial of Members who violate that section — in short an institutional decision to waive the privilege of the Clause.

Ill

The Court’s holdings in United States v. Johnson, 383 U. S. 169 (1966), and United States v. Brewster, supra, leave no doubt that evidence of a legislative act of a Member may not be introduced by the Government in a prosecution under § 201. In Johnson 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 underlie it.” 383 U. S., at 177.

In Brewster, we explained the holding of Johnson in this way:

“Johnson 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 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 acts.” 408 U. S., at 512.

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. 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 525. It “precludes any showing of how [a legislator] acted, voted, or decided.” Id., at 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. Id., at 526.

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 in Brewster 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.” Ibid. (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 themselves.

Me. 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 reference.” Post, at 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”; the 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 legislative acts “may reveal [to the jury] some information about the performance of legislative acts and the legislator’s motivation in conducting official duties.” Post, at 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 and Brewster, the District 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. 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. S. 458, 464 (1938) (“intentional relinquishment or abandonment of a known right or privilege”); Garner v. United States, 424 U. S. 648, 654 n. 9, 657 (1976).

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, 4 Mass. 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 legislative sphere.

“[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 or Debate Clause.” United States v. Johnson, 383 U. S., at 180-181, 182.

We reaffirmed that principle in Gravel v. United States, 408 U. S. 606, 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 legislator.”

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 Helsto-ski 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, § 6, 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 Con-, gress in the exercise of its legislative power to regulate the conduct of its members.” Johnson, supra, at 185. United States v. Brewster, 408 U. S., at 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 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 opponents.

The Supreme Judicial Court of Massachusetts noted in Coffin that “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 Brewster we stated:

“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 legislators.” 408 U. S., at 507 (emphasis added).

See also id., at 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.

Assuming, arguendo, 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.

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 Appeals is

Affirmed.

Mr. Justice Powell took no part in the consideration or decision of this case.

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, and United States v. Johnson, 383 U. S. 169, 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.

In Johnson, 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 176-177, the Court held that the prosecution 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 and “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.” Id., at 185.

In Brewster, 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 /ohnson’s proscription against inquiry into legislative motivation. “[A]n inquiry into the purpose of a bribe,” the Brewster 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 526, quoting Johnson, supra, at 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 motivation for them — are permissible under the Speech or Debate Clause, as interpreted in Brewster.

Brewster’s 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 and Brewster. 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 acts, Brewster does not bar the introduction of evidence simply because reference is made to legislative acts.

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 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 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.” Ante, at 488. But I do not believe the Clause was intended to make such prosecution virtually impossible. In light of the Court’s holding in Brewster 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.

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 indictment altogether. “[PJroof 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.” United States v. Brewster, 408 U. S. 501, 536 (1972) (BrenNAN J., dissenting). I continue to adhere to the view expressed in my dissent in Brewster, and would hold 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.” Id., at 539.

       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. 78-546, Helstoski v. Meanor, post, p. 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. Schiaffo v. Helstoski, 350 F. Supp. 1076 (D. N. J. 1972), rev’d in part, aff’d in part and remanded, 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 Attorney:
      “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 tbe 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, 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, 84-85 (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 inadmissible.” Post, at 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. S. 501, 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. See, e. g., 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).

      In reaching this conclusion, I have not overlooked the language in Brewster, relied upon by respondent, that “Johnson precludes any showing of how [Brewster] acted, voted, or decided.” 408 U. S., at 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 any 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.” Id., at 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 Brewster 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, at 490, itself is a rejection of the broad reading respondent attaches to “any showing.”


author: Me. Chief Justice Burgee Mr. Justice Brennan,

text:
    HELSTOSKI v. MEANOR, UNITED STATES DISTRICT JUDGE, et al.
    No. 78-546.
    Argued March 27, 1979 —
    Decided June 18, 1979

      Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, RehNquist, and SteveNS, JJ., joined. BeenNAN, J., filed a dissenting opinion, post, p. 508. Powell, J., took no part in the consideration or decision of the case.

      Morton Stavis argued the cause for petitioner. With him on the briefs was Louise Halper.

      Solicitor General McCree argued the cause for respondents. With him on the brief were Assistant Attorney General Hey-mann, Deputy Solicitor General Frey, and Louis M. Fischer.

      Stanley M. Brand argued the cause for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al. as amici curiae. With Mr. Brand on the brief was Neal P. Rutledge.

   Me. Chief Justice Burgee

delivered the opinion of the Court.

The question in this case is whether mandamus is an appropriate means of challenging the validity of an indictment of a Member of Congress on the ground that it violates the Speech or Debate Clause of the Constitution. The Court of Appeals declined to issue the writ. We affirm.

I

Petitioner Helstoski served in the United States Congress from 1965 through 1976 as a Representative from New Jersey. In 1974, the Department of Justice began investigating reported political corruption, including allegations that aliens had paid money for the introduction and processing of private bills which would suspend the application of the immigration laws so as to allow them to remain in this country.

In June 1976, a grand jury returned a 12-count indictment charging Helstoski and others with various criminal acts. Only the first four counts are involved in this case. The first count charged that Helstoski and others had conspired to violate 18 U. S. C. § 201 (c) (1) by accepting money in return for Helstoski’s “being influenced in the performance of official acts, to wit: the introduction of private bills in the United States House of Representatives.” The charge recited 16 overt acts, 4 of which referred to the actual introduction of private bills; a 5th referred to an agreement to introduce a private bill. The entire conspiracy was charged as a violation of the general conspiracy statute, 18 U. S. C. § 371.

Counts II, III, and IV were substantive counts charging violations of 18 U. S. C. §§ 201 (c) (1) and (2):

“Whoever, being a public official[,] directly or indirectly, corruptly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself or for any other person or entity, in return for:
“(1) being influenced in his performance of any official act; or
“(2) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud on the United States;
“Shall be fined ... or imprisoned.” (Emphasis added.)
“Public official” and “official act” are defined in 18 U. S. C. §201:
“(a) For the purpose of this section:
“ ‘public official’ means Member of Congress . . . ; and
“ ‘official act’ means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in his official capacity, or in his place of trust or profit.”

Each count charged that Helstoski, acting through his legislative aide, had solicited money from aliens in return for “being influenced in the performance of official acts, to wit: the introduction of private bills in the United States House of Representatives on behalf of” the aliens. Essentially, the charges against Helstoski parallel those dealt with in United States v. Johnson, 383 U. S. 169 (1966), and United States v. Brewster, 408 U. S. 501 (1972).

Each count also charged that Helstoski, again acting through his aide, had accepted a bribe “in return for his being influenced in the performance of official acts, to wit: the introduction of private bills in the United States House of Representatives on behalf of” the aliens. Finally, each count charged that a private bill had been introduced on a particular date.

Helstoski neither appeared before nor submitted material to the particular grand jury that returned the indictment. The prosecutor provided that grand jury with transcripts of most, but not all, of the testimony of witnesses, including Helstoski, before eight other grand juries. The United States Attorney explained that to avoid any possible prejudice to Helstoski he had not told the ninth grand jury of Helstoski’s invocation of his privilege under the Fifth Amendment. Moreover, he sought to avoid any challenge resulting from the fact that the District Judge had appeared before one grand jury to rule on Helstoski’s claim of that privilege.

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. He supported his allegation of abuse of the grand jury by characterizing the eight grand juries as “discovery tools.” The effect, he contended, was to permit the prosecutor to select the information presented to the indicting grand jury and to deprive that grand jury of evidence of the demeanor of witnesses, especially that of Helstoski himself.

District Judge Meanor denied the motion after examining a transcript of the evidence presented to the indicting grand jury. He held that there had been no such abuse to justify invalidating the indictment. He found that most of the material not submitted to the indicting grand jury “was either prejudicial to the defendants, or neither inculpating nor exculpating in nature.” He also found that the testimony of two grand jury witnesses should have been presented to the indicting grand jury and concluded that Brady v. Maryland, 373 U. S. 83 (1963), required that the Government provide Helstoski with transcripts of their testimony.. Judge Meanor also held that the Speech or Debate Clause did not require dismissal.

Approximately three months later, in June 1977, Helstoski petitioned the Court of Appeals for a writ of mandamus directing the District Court to dismiss the indictment.

The Court of Appeals declined to issue the writ of mandamus. 576 F. 2d 511 (CA3 1978). It concluded that the indictment in this case was indistinguishable from that in United States v. Brewster, supra, where an indictment was held not to violate the Speech or Debate Clause even though it contained references to legislative acts. The Court of Appeals rejected Helstoski’s argument that the indictment was invalid because the grand jury had heard evidence of legislative acts, which he argued was in violation of the Speech or Debate Clause. The court declined to go behind the indictment, holding that it was valid on its face.

In seeking reversal here of the Court of Appeals holding, Helstoski argues that the extraordinary remedy of mandamus is appropriate in this case to protect the constitutional command of separation of powers. He contends that the Speech or Debate Clause assigns exclusive jurisdiction over all legislative acts to Congress. The indictment itself, he urges, is a violation of that Clause because it represents an impermissible assertion of jurisdiction over the legislative function by the grand jury and the federal courts. He challenges the validity of the indictment on two grounds. First, the indictment itself refers to legislative acts. Any attempt at restricting the proof at trial, as approved by the Court of Appeals, will amount to an amendment of the indictment, thereby violating a Fifth Amendment right to be tried only on an indictment in precisely the form issued by a grand jury. Second, he contends the Speech or Debate Clause was violated when the grand jury was allowed to consider evidence of his legislative acts notwithstanding that such evidence and testimony was presented by him.

II

Almost 100 years ago, this Court explained: “The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it. It lies only when there is practically no other remedy.” Ex parte Rowland, 104 U. S. 604, 617 (1882) (emphasis added). More recently we summarized certain considerations for determining whether the writ should issue:

“Among these are that the party seeking issuance of the writ have no other adequate means to attain the relief he desires, and that he satisfy The burden of showing that [his] right to issuance of the-writ is “clear and indisputable.” ’ Moreover, it is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed.” Kerr v. United States District Court, 426 U. S. 394, 403 (1976) (citations omitted).

Helstoski contends that his petition for a writ of mandamus should not be governed by the rules which we have developed for assessing mandamus petitions generally. He argues that the writ is especially appropriate for enforcing the commands of the Speech or Debate Clause. We agree that the guarantees of that Clause are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require. We are unwilling, however, to accept the contention that mandamus is the appropriate vehicle for assuring protection of the Clause in the circumstances shown here. Helstoski could readily have secured review of the ruling complained of and all objectives now sought, by direct appeal to the Court of Appeals from the District Court order denying his motion to dismiss the indictment.

Only recently in Abney v. United States, 431 U. S. 651 (1977), we held that “pretrial orders rejecting claims of former jeopardy . . . constitute ‘final decisions’ and thus satisfy the jurisdictional prerequisites of [28 U. S. C.] § 1291.” Id., at 662. The reasoning undergirding that holding applies with particular force here. The language of the Abney opinion is particularly apt, even though the context was the Double Jeopardy Clause:

“[T]here can be no doubt that such orders constitute a complete, formal and, in the trial court, final rejection of a criminal defendant’s double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment’s guarantee.” Id., at 659.

This is equally true for a claim that an indictment violates the fundamental guarantees of the Speech or Debate Clause. Once a motion to dismiss is denied, there is nothing the Member can do under that Clause in the trial court to prevent the trial; but it is equally clear an appeal of the District Court ruling was available.

Second, we noted:

“ [T]he very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him.” Ibid. (Emphasis added; citations omitted.)

Abney concludes:

“ [T]he rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. . . . [T]his Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” Id., at 660-661.

That characterization of the purpose of the Double Jeopardy Clause echoed this Court’s statement in Dombrowski v. Eastland, 387 U. S. 82, 85 (1967), that the Speech or Debate Clause was designed to protect Congressmen “not only from the consequences of litigation’s results but, also from the burden of defending themselves.”

Here, the holding of Abney becomes highly relevant; by analogy, if a Member “is to avoid exposure to [being questioned for acts done in either House] and thereby enjoy the full protection of the Clause, his . . . challenge to the indictment must be reviewable before ... exposure [to trial] occurs.” Abney, supra, at 662.

Helstoski argues that he should not be penalized for failing to predict our decision in Abney, But he cannot be viewed as being penalized since the controlling law of the Third Circuit was announced at the time of the District Court order denying dismissal of the indictment, and our holding did no more than affirm the correctness of the law of that Circuit. See United States v. DiSilvio, 520 F. 2d 247, 248 n. 2a (CA3), cert. denied, 423 U. S. 1015 (1975). The relevance of the Abney-DiSilvio holdings, read in light of Dombrowski v. Eastland, supra, was predictable. We hold that if Helstoski wished to challenge the District Court’s denial of his motion to dismiss the indictment, direct appeal to the Court of Appeals was the proper course under DiSilvio, supra.

Affirmed.

Mr. Justice Powell took no part in the consideration or decision of this case.

Mr. Justice Brennan,

dissenting.

In today’s decision, the Court professes to “agree that the guarantees of [the Speech or Debate] Clause are vitally important to our system of government and therefore are entitled to be treated by the courts with the sensitivity that such important values require.” Ante, at 506. Nonetheless, it refuses to hold mandamus an appropriate vehicle for assuring the protections of the Clause because “Helstoski could readily have secured review of the ruling complained of and all objectives now sought, by direct appeal to the Court of Appeals from the District Court order denying his motion to dismiss the indictment.” Ibid.

Mr. Helstoski may well be excused if he views the Court’s holding as if it were a line out of Joseph Heller’s “Catch-22.” He cannot utilize mandamus because he should have sought a direct appeal. But he cannot seek a direct appeal, because that avenue is time barred. Ante, at 508 n. 4. Of course, the dilemma could have been short-circuited had Helstoski brought an immediate appeal at the time his motion for dismissal' of the indictment was denied. Unfortunately, he could not have known that avenue of relief was available until today — for we have never before held that the denial of a claim that an indictment violates the Speech or Debate Clause is an exception to the longstanding rule forbidding interlocutory appeals. And, as the Court holds, today it is too late. Values as “vitally important” as those guaranteed by the Speech or Debate Clause are entitled to more sensitive treatment.

       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 ease was argued together with No. 78-349, United States v. Helstoski, ante, p. 477, which concerns 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 accepted money in return for promising to introduce and introducing private bills.

       Tbe proceedings before the various grand juries are described in United States v. Helstoski, ante, p. 477.

       It is true that Helstoski challenges the admissibility of evidence at his trial; that challenge, however, is raised only if the indictment is allowed to stand.

       If the petition for a writ of mandamus were treated as an appeal it would, of course, have been jurisdictionally out of time. Fed. Rule App. Proc. 4.

      The Court makes the surprising assertion that Helstoski should have anticipated today’s holding on the basis of a footnote in a 1975 Third Circuit opinion dealing with a different issue. (That opinion, like this Court’s decision in Abney v. United States, 431 U. S. 651 (1977), was limited to the double jeopardy issue. Abney was announced far too late to have helped the defendant.) Although I agree with the Court’s extension of the Abney principle from double jeopardy claims to those based upon the Speech or Debate Clause, I do not regard the extension as obvious. Nor, apparently, does the Government, as it carefully refrains from endorsing that view. See Brief for United States 92. I certainly would not use it as a basis for penalizing a former Congressman in his assertion of a principle so “vitally important to our system of government.” Ante, at 506.