ON APPEAL FROM UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Hunter and Garth, Circuit Judges.
This is an appeal from the denial of a motion by an intervenor to quash a grand jury subpoena addressed to the Clerk of the House of Representatives. The proceedings commenced when on March 6, 1978, the United States Attorney for the Eastern District of Pennsylvania filed an ex parte motion for an order authorizing a subpoena Duces tecum to the Honorable Edmund L. Henshaw, Clerk of the House of Representatives. The motion sought to compel the Clerk's appearance before a grand jury in the Eastern District, together with his production of all records reflecting telephone toll charges for calls from and charged to the Office of Representative Joshua Eilberg for the years 1973 through and including March 2, 1978. This motion was apparently made in order to comply with House Resolution 10 of January 4, 1977.*fn1 Thus, the motion submitted by the United States Attorney disclosed that the grand jury was investigating possible violations of federal criminal law in connection with the funding and construction of a hospital in Philadelphia. The district court concluded on the same day that the proposed subpoena was for records "necessary, material and relevant to a pending Grand Jury investigation," (A-34), and authorized its service. Learning of the service of the subpoena, Congressman Eilberg, identified in the moving papers as Intervenor A, sought to intervene and to quash the subpoena. He advanced three grounds: (1) insufficient compliance with H.R. 10; (2) insufficient compliance with this Circuit's Schofield rule;*fn2 and (3) prohibition of use of the records by the Speech or Debate Clause of the Constitution, art. 1, § 6, cl. 1. The United States Attorney, conceding that the Congressman is a target of the grand jury investigation (A-7 to A-8), did not oppose intervention, and the court held a hearing on the motion to quash.
The district court held that Mr. Eilberg lacked standing to object to the manner in which the court complied with H.R. 10 because that rule was intended for the institutional protection of the House Records. Since the subpoena was not directed to him, but to the Clerk of the House, the court also held that the Congressman lacked standing to make a Schofield challenge to its scope. As to the Speech or Debate Clause, the court held that the records in question, which revealed no more than the time, duration and location of parties to a conversation, did not fall within its scope. Recognizing, however, that the availability to the grand jury of the identity of the callers would inevitably lead to further inquiry which might result in evidentiary use against Mr. Eilberg of legislative acts protected by the Speech or Debate Clause, it issued a supplementary order, providing that no evidence concerning the conversations which took place during the calls listed in the subpoenaed records be presented or disclosed to the grand jury except with its approval after an in camera proceeding. This appeal followed.*fn3
We have had the benefit of a brief amicus curiae from the General Counsel to the Clerk of the House, with respect to the contention that there was insufficient compliance with H.R. 10. The brief describes the manner in which the telephone toll records are maintained, and suggests that Mr. Eilberg's Speech or Debate contention presents a significant constitutional question which can be obviated by a proper application of H.R. 10. The brief further points out that the House Resolution confers consent (absent a revocation by House action) to the production of House documents where "a proper court has determined upon the materiality and relevancy of Specific paper or documents called for in the subpoena" (emphasis supplied). It suggests that the general finding of materiality made by the district court was insufficiently specific. Instead, the court should have limited the subpoena to one or more specific telephone numbers or locations relevant to the investigation.
"Amicus submits to this court that it is entirely reasonable for this court to remand this matter to the District Court with instructions to that court, upon representations made by the Government, to issue a finding of materiality and relevancy which is narrow enough in its scope so as to avoid any unnecessary infringement on the privileges of the legislature, but which still will instruct the House to produce the specific documents necessary to the Government's investigation."
Amicus brief 11-12. In the district court, however, the Clerk of the House did not resist the subpoena, but stood ready to comply. Since that was so, there was no occasion for the district court to consider, and there is no reason for this court to rule upon, the question whether H.R. 10 requires a more specific governmental showing, and judicial finding, of relevancy of the subpoenaed materials than was made and found here. It seems clear from H.R. 10 that the House believes it has the power to resist a valid subpoena from a court in some instances. Possibly it would rest its power to do so on Article I, § 5, cl. 3,*fn4 since the resolution refers to "the privileges and rights of this House." Textually, at least, the resolution does not seem aimed at vindication of the Speech or Debate Clause privilege of House members. That privilege, although of great institutional interest to the House as a whole, is also personal to each member. Whether it could be narrowed by Congressional action to the member's detriment is a question carefully reserved in United States v. Brewster, 408 U.S. 501, 529 n.18, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) and United States v. Johnson, 383 U.S. 169, 185, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966). Whether it could be enlarged by legislation, or more particularly by the nonstatutory action of a single house, so as to place beyond the subpoena power of the judicial branch matters not actually within the Speech or Debate Clause privilege is an open question of considerable delicacy. See United States v. Liddy, 177 U.S.App.D.C. 1, 7-8, 542 F.2d 76, 82-83 (1976); Calley v. Callaway, 519 F.2d 184, 219-22 (5th Cir. 1975), Cert. denied, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976). But this is not a proper case to decide whether the House has the power to restrict or expand the reach of the Speech or Debate Clause beyond that which a court might otherwise determine. On the present record the House has not taken a position in opposition to the subpoena. We agree with the district court that in challenging a subpoena to the Clerk for House Records, an individual congressman lacks standing as an intervenor to assert in his individual interest whatever institutional interest the House as a whole may have in a more particularized compliance with its resolution. Thus we reject Mr. Eilberg's contention that H.R. 10 requires a remand, and reject, as well, the invitation of the Clerk of the House as amicus curiae to rely on that resolution as a reason for a remand.
In Schofield I, this court held that in dealing with a witness who resists a grand jury subpoena, a district court must, before adjudging the witness in contempt, require that the government make some preliminary showing by affidavit that each item subpoenaed is relevant to an investigation being conducted by the grand jury, properly within its jurisdiction and not sought for another purpose. 486 F.2d 85, 93. We also held that absent extraordinary circumstances, the government's affidavit of relevancy should be disclosed to the prospective witness. Id. Congressman Eilberg urges that the Schofield rule be extended to intervenors. He points out that in this instance the court acted ex parte, and that he never had an opportunity to contest the government's affidavit setting forth relevance and grand jury jurisdiction. In this instance, in which the object of the grand jury investigation is common knowledge in Philadelphia, however, he can point to no prejudice from his failure to see the affidavit, and does not suggest that he could have put in issue the bona fides of the grand jury investigation. As the district court observed, ". . . it is . . . difficult to take seriously any suggestion that the relevance of the subpoenaed records is in doubt, or that the Congressman or his counsel need to examine written affidavits in order to gauge relevancy." (A-10). Even if Mr. Eilberg fell within the Schofield rule, he would not on the present record derive any benefit from it. Thus we need not consider whether, in an appropriate case, an intervenor who suffers injury from the improper use of a grand jury subpoena addressed to a third party may insist upon the kind of showing of relevancy and proper purpose which under Schofield a witness may insist upon. The Schofield rule has thus far been applied only for the benefit of persons subpoenaed to appear before the grand jury. Consideration of its extension should await a case in which an intervenor can make at least a colorable claim that the court might find an improper use of the subpoena.
III. THE SPEECH OR DEBATE CLAIM
The caselaw is clear that a legislator asserting the invasion of the Speech or Debate Clause privilege by use of a grand jury subpoena to a third party may intervene and oppose such use. E. g., Gravel v. United States, 408 U.S. 606, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972); Cf. In re Grand Jury Proceedings (Cianfrani ), 563 F.2d 577 (3d Cir. 1977) (state senator; suppression hearing). The district court acknowledged as much, but held that the instant subpoena "does not in any way trench upon the speech or debate privilege. At most, compliance with the subpoena would provide information, some small portion of which would conceivably lead to the discovery that a legislative act was performed." (A-12). This holding obviated the necessity for considering difficult questions of burden of proof and appropriate procedures for the resolution of the privilege claim.
Both the Congressman and the Clerk of the House as amicus contend that the court's ruling, while having the merit of simplicity, was overly simplistic. They contend, and we would in any event take judicial notice, that the telephone is the single most important and often used instrument of communication in the House of Representatives. It may be used by the Majority and Minority Whips of the House to transmit information on scheduling of votes and other related legislative information. It may be used by House members in the process of persuading each other on the merits of proposed legislation. Such uses are legislative acts by even the narrowest test of the few ...