semination of information relating to proposed or enacted legislation, the administration of legislation by the executive, or the review of such legislation by the judiciary are all an integral part of a legislator's function and are indistinguishable from a Senator's legislative activities, and that the distribution of this information is part of his official business and is entitled to be mailed under the frank. The letter declared that the Senate had gone to extraordinary lengths to serve the interests of justice in this action by authorizing and permitting its employees to testify and by supplying voluminous materials to the plaintiffs. However, the Ad Hoc Committee had reviewed the request for additional materials made upon the administrative assistant of every Senator and had determined that there was no connection between the materials sought and the use of the frank by Senate offices. Therefore, the Ad Hoc Committee was not recommending that the Senate authorize the subpoenaed administrative assistants to turn over these materials. The letter concluded:

The Senate cannot simply accede to excessive demands of this kind. Not only do such demands disrupt the operation of the Senate and involve extensive costs, they also intrude without cause into its functions and privileges. The committee recognizes that there is at present no statute defining the scope of the Senatorial privilege involved here. While there is a body of case law defining the express immunity reserved to the Congress in the Constitution, the Courts have yet to address the privilege of the Houses of Congress deriving from the supremacy of each branch of the government within its own assigned area of Constitutional responsibilities.

Whether the privileges and immunities of the Senate can be properly invoked in the case now before this Court is, of course, for the Courts to decide-just as the Courts will decide all other judicial questions raised, including what information is relevant and necessary.

Until there is a final judicial determination to the contrary, however-and after appeal, if necessary, as to the issues of relevancy and privilege—the committee, with the concurrence of both the Senate Democratic and Republican Conferences, will continue to contest the relevance of the additional materials sought by the plaintiff and to assert the privileges and immunities of the Senate in order to preserve and protect the powers and prerogatives granted and reserved to the Congress by the Constitution. [Letter from Senator Lee Metcalf to Cornelius B. Kennedy, dated April 4, 1977.]

Mr. Kenneth J. Guido, Jr., Counsel for Common Cause, disputed the assertions of Mr. Kennedy, and asked that the materials sought in the subpoena be turned over to the plaintiffs.

At the conclusion of the status call, the court directed Mr. Kennedy to submit the materials to the court for in camera inspections. On April 29, 1977, the Senate passed S. Res. 136, 95th Cong., 1st Sess. (1977), which authorized Mr. Kennedy, counsel for the subpoenaed Senate employees, to furnish to the District Court, for in camera inspection:

1 information on volume of mail for the year 1972 with the identity of the Senators coded, set out in the same fashion as the information previously authorized to be submitted to the court and to the plaintiffs for 1973, 1974, and 1975:

(2) those copies of what are known as computer code counts, identifying the categories of codes maintained in the Senate computer by each Senate office and the number of names in each category, which were retained by the computer Center in 1975, and the computer code count made near the close of 1976 for the Senate offices not included in the 1975 group, in each case with the identity of the Senators coded;

The resolution further provided that Mr. Kennedy was to furnish from the 100 Senators' administrative assistants:

[A] form that the identity of the Senator is coded consist-
ent with the manner in which earlier information was
submitted in this case, the meaning assigned to such codes
to the extent that he may have that information in his
possession, as well as such general or specific instructions
which he has in his possession with respect to the use of
the code categories maintained by that office, * * *

On May 2, 1977, U.S. District Judge George L. Hart was named to replace Judge William B. Jones on the three-judge District Court.

At a status call on May 25, 1977, Mr. Kennedy was directed to file the requested documents in camera by June 15, 1977. The court stated that before it would release any of the information to the plaintiffs it would notify the Senate and give it 60 days to obtain a stay order.

On August 31, 1977, Common Cause filed a notice of taking a deposition, on September 14, 1977, of the National Records Center, Accession and Disposal Branch, General Services Administration. The National Records Center had also been served with a subpoena duces tecum commanding the appearance of a representative to be designated by them at such deposition, and further commanding that the representative so designated produce for inspection; (1) copies of all Records Transmittal Receipt Forms which had been transmitted to the National Records Center since January 1, 1972; (2) copies of all Records Reference (Retrieval) Requests which have been transferred from the National Records Center since January 1, 1972; and (3) all documents, correspondence, memoranda, and other writings, or copies, received by the National Records Center relating to the use by the Senators so designated or their agents and/or employees, of direct mail, the Congressional mailing privilege, and/or direct mailing lists and/or techniques which were transmitted to the National Records Center since January 1, 1972. On September 2, 1977, the Federal defendants filed a report regarding a meeting held on July 20, 1977, between the Federal defendants, the intervening defendant and the Senate deponents and a subsequent agreement to provide plaintiff with an opportunity to inspect documents of the U.S. Department of Agriculture

relating to the Department of Agriculture's farmers' bulletins publications program.

On September 7, 1977, the National Records Center, Accession and Disposal Branch, General Services Administration filed an objection to the production, by September 14, 1977, of the various documents as specified in the subpoena duces tecum.

An order was filed on September 23, 1977, directing that the material submitted to the court for in camera inspection as authorized by S. Res. 136, 95th Cong., 1st Sess. (1977), be retained by the court for 60 days pending appeal and that, if no appeal has been noted within 60 days, the material be released to Common Cause. Notices of appeal to the Court of Appeals for the District of Columbia Circuit and to the U.S. Supreme Court by Peter Stavrianos and the other Senate employees, nonparty deponents, of the order, were filed on October 21, 1977.

Plaintiffs moved the court on October 26, 1977 to compel the 100 Senate Administrative Assistants to produce documents.

On November 15, 1977, the Senate agreed to S. Res. 325, 95th Congress, 1st Sess. (1977) which authorized the counsel for the subpoenaed Senate employees to furnish the material for use in the proceeding without restriction to in camera use, but subject to the protective provisions in the previously approved stipulation. The resolution also authorized the counsel for the subpoenaed Senate employees to file for leave to intervene on behalf of the Senate in order to protect and defend the duties, responsibilities, rights and privileges of the Senate under Article I of the Constitution.

A memorandum in opposition to plaintiffs' motion to compel the 100 Senate Administrative Assistants to produce documents was filed on November 17, 1977 by the 100 Senate Administrative Assistants.

On November 29, 1977 the Senate employee deponents filed a motion to withdraw their notice of appeal. On the same day, an order was filed granting the motion to withdraw the separate notices of appeal to the U.S. Supreme Court and the U.S. Court of Appeals for the District of Columbia Circuit.

The motion of plaintiffs to compel the 100 Senate Administrative Assistants to produce documents was argued and granted on November 29, 1977 and an order granting the motion was filed on December 19, 1977.

Status.-The case is pending before the three-judge court in the U.S. District Court for the District of Columbia.

The full text of the memorandum and order of February 10, 1975, was printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1975.

The full text of the court's "Memorandum and Order" of July 30, 1975, the "Stipulation and Protective Order Regarding Production of Information and Documents By Certain Employees of the House of Representatives," filed on March 1, 1976, and the "Order" of the court filed on March 1, 1976, were printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, April 15, 1976.

The full texts of the orders of September 23, 1977 and December 23, 1977 are printed in the "Decisions" section of Court Proceedings

and Actions of Vital Interest to the Congress, Part 3, December 31, 1977.

In re Grand Jury Investigation into Possible Violations of Title 18, United States Code, Sections 201, 371, 1962, 1951, 1503, 1343 and 1341

No. 78-1755 (Third Cir.)

This case arose out of a motion filed by the Government in the U.S. District Court for the Eastern District of Pennsylvania for the production of congressional records from the Clerk of the U.S. House of Representatives, Edmund L. Henshaw. (Misc. No. 78-142). The records sought consisted of telephone toll records of all telephone calls from or charged to the Office of then-Representative Joshua Eilberg for the years 1973 through and including March 2, 1978. The motion was granted on March 6, 1978 by the District Court which issued written findings that the documents sought were necessary, material and relevant to a pending grand jury investigation. The Clerk of the House was ordered to produce the documents before the grand jury on March 16, 1978.

Congressman Eilberg filed a motion on March 15, 1978 for leave to intervene and for an order quashing the subpoena duces tecum. District Judge Fullam issued a memorandum and order on May 5, 1978 granting Representative Eilberg's motion to intervene and denying his motion to quash.

On May 16, 1978, Congressman Eilberg filed a motion for reconsideration of his motion to quash.

On June 2, 1978 a memorandum and order was filed in the District Court denying the motion for reconsideration, but ordering that no evidence concerning the contents of telephone conversations reflected in the subpoenaed records be presented to the Grand Jury except with approval of the Court after in camera proceedings.

Congressman Eilberg filed a notice of appeal on June 9, 1978. On June 30, 1978, Representative Eilberg filed his appellant's brief.

The Government filed its brief as appellee on July 24, 1978. On August 3, 1978, the Clerk of the House moved to file out of time a brief as amicus curiae. The motion was granted and the brief was filed on August 10, 1978.

The appeal was argued on September 7, 1978.

On September 8, 1978, Philadelphia Newspapers, Inc. and James Smith petitioned for leave to intervene and for access to District Court records which had been sealed by the District Court and the Court of Appeals.

The Clerk of the House filed a supplemental brief on September 12, 1978.

On September 13, 1978, the Government filed an answer to the petition of Philadelphia Newspapers, Inc. and Mr. Smith.

Supplemental briefs were filed by Congressman Eilberg and the Government on September 15, 1978, and September 19, 1978, respectively.

On October 20, 1978, the Court of Appeals issued an opinion denying the motion of Philadelphia Newspapers, Inc. and Mr. Smith for leave to intervene and for access to sealed court records. The opinion stated that any challenge to the orders sealing the

District Court records should, in the first instance, be addressed to that court.

The Court of Appeals issued its opinion in regard to Congressman Eilberg's appeal on October 20, 1978. The court held that the District Court had properly declined to quash the subpoena, but vacated the order appealed from and remanded the case to the District Court for proceedings consistent with its opinion. The court dealt in turn with each of the three grounds on which Congressman Eilberg had sought to quash the subpoena: (1) Insufficient compliance with House Resolution 10 (95 Cong., 1st sess.); (2) insufficient compliance with the Third Circuit's decision in Schofield, In re Grand Jury Proceedings (Schofield D), 486 F.2d 85 (3d Cir. 1973); In re Grand Jury Proceedings (Schofield II), 507 F.2d 963 (3d Cir.), cert. denied, 421 U.S. 1015 (1975); (3) the Speech or Debate Clause. House Resolution No. 10 states:

Whereas, by the privileges of this House no evidence of a documentary character under the control and in the possession of the House of Representatives can by the mandate of process of the ordinary courts of justice be taken from such control or possession except by its permission: Therefore, be it

Resolved, That when it appears by the order of any court in the United States or a judge thereof, or of any legal officer charged with the administration of the orders of such court or judge, that documentary evidence in the possession and under the control of the House is needful for use in any court of justice or before any judge or such legal officer, for the promotion of justice, this House will take such action thereon as will promote the ends of justice consistently with the privileges and rights of this House; and be it further

Resolved, That during the Ninety-fifth Congress, when a subpena or other order for the production or disclosure of information is by the due process of any court in the United States service upon any Member, officer, or employee of the House of Representatives, directing appearance as a witness before the said court at any time and the production of certain and sundry papers in the possession and under the control of the House of Representatives, that any such Member, officer, or employee of the House, after notifying the Speaker, is authorized to appear before said court at the place and time named in any such subpena or order, but no papers or documents in the possession or under the control of the House of Representatives shall be produced in response thereto; and be it further Resolved, That after the Speaker has been notified by the Member, officer, or employee that a proper court has determined upon the materiality and relevancy of specific papers or documents called for in the subpena or other order, then said court through any of its officers or agents shall have full permission to attend with all proper parties to the proceedings before said court and at a place under the orders and control of the House of Representatives and take copies of the said documents or papers and the Clerk