Clause, Rep. Carney insisted that they were 'final decisions' and immediately appealable. Focusing next on the merits of his appeal, Rep. Carney essentially reiterated the agruments he had advanced in the district court. With respect to the motion to exclude documents, Rep. Carney challenged what he viewed as the district court's conclusion that "preparatory acts" of gathering information and drafting an amendment for introduction in Congress were admissible in evidence if the fact of introduction of the amendment in Congress was not admitted into evidence: Characterization of an act as "preparatory" is an incorrect standard for determining the scope of the clause. First, it is clear that an act can be both preparatory and legislative in character. For example, "gathering information" for use in Committee hearings or with which to make decisions on matters of voting is a protected legislative act. McSurely v. McClellan, supra; In re Grand Jury Investigation, supra. Cf. Brief of the Solicitor General in U.S. v. Helstoski, supra. Yet such acts are also preparatory to acts undertaken in Committee or on the floor of the House which would use the information thereby gathered. Another example is conversations between a legislator and a Committee staff member preparatory to later action on the floor of the House or in Committee. U.S. v. Dowdy, 479 F.2d 213 (1973), cert. denied, 414 U.S. 823 (1974). Even in Gravel v. U.S., supra, the Supreme Court held that Senator Gravel's actions, and those of his aides, in preparing for his activities in Committee could not be the subject of a Grand Jury probe into criminal activity on the part of Senator Gravel. [Id. at 19-20] Rep. Carney also took issue with the district court's refusal to characterize as protected (and therefore excludable) the disputed correspondence, because the letters ostensibly related to "future" legislative acts. According to Rep. Carney, the "past/future" analysis could not be applied in this case: Similarly, the District Court's characterization of the subject correspondence as not protected because they relate to "future" legislative acts misinterprets the Supreme Court's decision in U.S. v. Helstoski, supra. In that case, as in U.S. v. Brewster, supra, the Supreme Court articulated the distinction between a promise to do an act in the future and actual legislative activity. The "past/ future" distinction drawn by the Supreme Court thus has no application where the subject acts themselves are legislative acts protected by the Clause. Stated differently, the "past/future" mode of analysis does not necessarily define the scope of protected legislative action because legislative acts may themselves relate to other, future legislative acts. For example, as is made clear from the discussion of the documents in issue in the Brief of the Solicitor General in U.S. v. Helstoski, the Supreme Court found protected correspondence from the congressman to proposed benefici aries of private immigration bills requesting information Further, Rep. Carney argued, even if parts of letters which referred to past legislative acts were excised when presented to a grand jury, the inference would remain strong that the Member voted the way the letters indicated and that the letters were part of his motivation for supporting or opposing a certain piece of legislation. The Member would then be required to explain the factual circumstances supporting the inference and thus would be "questioned" in a place other than Congress, in violation of the Speech or Debate Clause. With respect to his motion to permit inspection of the grand jury minutes, Rep. Carney argued that the district court erred in denying it for two reasons. First, said the defendant, once he "made an evidentiary demonstration that the Speech or Debate Clause was violated to at least some extent in the grand jury proceedings, the purposes of the . . . Clause outweigh the policy of secrecy of the grand jury." [Id. at 32] Second, Rep. Carney contended, the district court's denial was predicated upon a misconstruction of the Speech or Debate Clause in that it had concluded that the violations of the privilege which occurred during the grand jury proceedings were not sufficient to merit dismissal—a conclusion which was reached without the benefit of a complete evidentiary demonstration by the defendant. This was wrong, said Rep. Carney, because: With all due respect to the District Court, it is not sufficiently familiar with the workings of Congress to recognize less obvious testimony and materials which are protected by the Clause. It is clear that seemingly innocuous evidence and testimony may be protected once the context in the legislative process is factually demonstrated. Even telephone toll records have been recognized as entitled to protection under the Speech or Debate clause. In re Grand Jury Proceedings, 587 F.2d 589 (3rd Cir. 1978). [Id. at 34 (footnote omitted)] Finally, with respect to his motion to dismiss the indictment on Speech or Debate Clause grounds, Rep. Carney argued that the lower court erred in the standard it used to deny the motion. According to the defendant, "the introduction of any privileged evidence before the grand jury should merit dismissal." [Id. at 38] Only by utilizing such a standard, he argued, could the purposes of the Clause be properly effectuated. Alternatively, Rep. Carney asserted, the correct standard should be the Helstoski "substantial factor underlying the indictment" test, which, the defendant insisted, was clearly met in this case. On June 1, 1981, the Government filed its brief in the appeals court arguing that: (1) the court lacked jurisdiction to review the district court's evidentiary rulings and its decision to deny access to the grand jury transcripts; (2) the district court correctly denied the defendant's motion to dismiss the indictment; (3) the district court's evidentiary rulings were correct; and (4) the district court's denial of Rep. Carney's motion to permit inspection was not an abuse of discretion. On the first point, the Government argued that the evidentiary and access rulings were clearly interlocutory, not final, orders of the district court and therefore not appealable. Further, the Government contended that "[r]outinely permitting appeals from every decision of a district judge which remotely touches on questions relating to the scope of the Speech or Debate Clause would prove grossly disruptive of any oderly trial procedure and would truly place legislators 'above the law.' granting them a unique power to manipulate and delay their trials unlike all other defendants." [Appellee's Brief, June 1, 1981, at 13] On the second point, the Government asserted that the district court's refusal to dismiss the indictment was proper because: (1) even if some privileged material was presented to the grand jury, an indictment is not subject to attack on the grounds that it is based on incompetent evidence; (2) none of the evidence presented to the grand jury in this case was privileged; and (3) even if the appeals court concluded that some privileged evidence was presented to the grand jury, that evidence was not sufficient to taint the indictment. After restating its arguments on the scope of the Speech or Debate Clause raised in the lower court, the Government concluded that to accept Rep. Carney's suggestion that the presentation of any privileged material to the grand jury, no matter how insubstantial, warranted dismissal of the indictment, "would only immunize the Defendant's criminal conduct even though no causal relationship exists between that conduct and the privilege asserted." [Id. at 33] If the appeals court found that it had jurisdiction to consider the propriety of the evidentiary rulings, the Government maintained that the district court should be upheld on the merits because the Speech or Debate Clause "does not bar the introduction of evidence which happens to include mention of congressional events, committee hearings, or membership on committees; rather it prohibits a Congressman from being questioned concerning his own legislative acts." [Id. at 35] Further, the government argued, the introduction of the correspondence at issue, which did not refer to past legislative acts or to the motivations for having performed legislative acts, was necessary to prove Rep. Carney's "knnowledge of Mr. Lyden's illicit reasons for allowing him to use the credit cards." [Id.] Finally, said the Government, "all of the subject documents were initiated by a constituent or lobbyist, or were responses to such contract, and are therefore not analogous to those cases which discuss the investigatory function of Congress carried on for the purpose of gathering information on proposed legislation." [Id. at 36] On the last issue, the Government maintained that the district court's decision that Rep. Carney's interest in access to the grand jury minutes was outweighed by the strong policy mandating the confidentiality of grand jury proceedings was proper and within its discretion. In the Government's view, Rep. Carney had failed to make any showing of particular need for the minutes of the grand jury, and whatever factual showing he had made was "clearly overcome by the grand jury transcripts themselves, which the district court properly reviewed in camera. " [Id. at 57-58] On June 8, 1981, Rep. Carney filed a reply brief in which he attempted to refute the Government's arguments. On the jurisdictional point, he argued that in several recent cases involving Congressmen, pretrial review had been expansively interpreted. For this proposition he cited in particular United States v. Myers, 635 F.2d 932 (2d Cir. 1928), and United States v. Williams, 644 F. 2d 950 (2d Cir. 1981). (See pages 35 and 92 of this report respectively for a discussion of those cases.) With respect to his motion to exclude documents from evidence, Rep. Carney asserted that particularly the Petroleum Marketing Practices Act materials were "clearly part of the process of drafting legislation, an activity protected by the Speech or Debate Clause." [Reply Brief of Appellant, June 8, 1981, at 5] He continued: To hold unprotected the activities, communications and decisions leading up to the actual delivery of a speech on the floors of Congress, or the way in which a Representative votes, or how legislation or amendments are drafted because the prosecutor does not intend to expressly advise the jury that the actual event occurred is to strip any practical meaning from the protections afforded by the Clause. In those circumstances, a hostile executive could haul any or all legislators into court and "question" them before a jury about each or all of their "legislative" acts so long as the jury is not "told" that the act actually occurred. Further, the jurors will certainly realize that a document which purports to be an amendment to a bill pending before Congress, bears the name of a Defendant in a criminal prosecution, and which document has been denominated by the Government as constituting one of the "official acts" for which this Defendant is being prosecuted, was in fact introduced into Congress by the defendant. [Id. at 7] Regarding his motion requesting access to the grand jury minutes, Rep. Carney attacked the Government's reliance on in camera review, noting that the "nuances from contamination are not always discernible as a result of the in camera inspection under the circumstances . . . where the District Court, prior to trial, does not have more than summary knowledge at best of the factual background of the case and the inter-relationships of evidentiary factors." [Id. at 9] Finally, with respect to his motion to dismiss the indictment on Speech or Debate Clause grounds, Rep. Carney once again insisted that under the Helstoski case dismissal was proper and warranted. On June 15, 1981, the case was argued in the appeals court and on June 29 the court issued a per curiam decision dismissing the appeal with respect to the motions to exclude documents and for access to the grand jury minutes, and affirming the district court's denial of the motion to dismiss the indictment on Speech or Debate Clause grounds. [United States v. Carney, 665 F.2d 1064 (D.C. Cir. 1981)] The court of appeals held that the lower court's evidentiary and access rulings were not "final" decisions for purposes of 28 U.S.C. §1291 and were therefore unappealable. While the court stated that the denial of the motion to dismiss was immediately appealable, it held that the district court's decision on the motion was proper. The appeals court ruled that: Even if it is true, as appellant claims, that some of the evi- Motions by Rep. Carney to stay and recall the mandate were subsequently denied by the court of appeals. On August 27, 1981, Rep. Carney filed a petition for a writ of certioriari in the U.S. Supreme Court. [No. 81-371-CFY] He argued that the writ should be graned for two reasons: (1) the determination by the court of appeals that it had no jurisdiction over the lower court's evidentiary and access rulings was contrary to the holdings of other circuits and the Supreme Court; and (2) there was a conflict among the circuits over the standards for dismissal of an indictment on Speech or Debate Clause grounds which should be resolved by the Supreme Court. In support of his first argument, Rep. Carney once again cited the Helstoski, Williams, and Myers cases, as well as Helstoski v. Meanor, 442 U.S. 500 (1979). With respect to his second argument, Rep. Carney again pointed to the different standards employed for dismissal by the Third Circuit in Helstoski and the Second Circuit in Myers. In any event, he argued, whether the instant indictment was "facially invalid" was not a proper consideration in determining whether the indictment should be dismissed, particularly since it was clear that "the scope of the indictment and the proof to be presented at trial extends to activities indisputably protected by the Speech or Debate Clause." [Petition for Writ of Certiorari, August 27, 1982, at 15] Furthermore, Rep. Carney concluded: [A] "facial invalidity" standard injects into the law the very opportunity for intimidation by the Executive Branch which the Speech or Debate Clause is designed to preclude. Under this standard, the Government may violate the Clause with impunity so long as it is careful to return a facially valid indictment. Finally, a rule requiring facial invalidity for dismissal of an indictment on Speeck or Debate Clause grounds is inconsistent with the purposes of the Speech or Debate Clause. These purposes, as the Third Circuit in United |