The opinion of the court was delivered by: RAMBO
This case presents what is apparently a question of first impression regarding the power of a federal grand jury to subpoena information from a duly constituted select committee of the state legislature. We are here called upon to decide whether members of the Pennsylvania House of Representatives who are not themselves the target of a federal criminal investigation may assert a privilege of non-disclosure, based on constitutional Speech or Debate considerations, against a federal grand jury subpoena.
The following facts are undisputed.
The House of Representatives of the General Assembly of the Commonwealth of Pennsylvania (the House), through its Select Committee to Investigate Compliance With the Steel Products Procurement Act (the Committee) has for approximately a year been investigating, inter alia, alleged improprieties concerning the procurement of granite for the expansion of the state capitol in Harrisburg, Pennsylvania. Transcript at 3. More specifically, the claimed wrongdoing has occurred in connection with sole source no-bid contracts, including supply and fabrication agreements. Id. That investigation is ongoing, Id., and includes fact-finding in the nature of calling witnesses to appear before the Committee as well as conducting interviews through investigators hired by the Committee. Id. at 4.
At the invitation of the Pennsylvania Department of General Services,
the United States Attorney for the Middle District of Pennsylvania (hereinafter the United States Attorney or the United States) convened a grand jury to investigate the alleged improprieties. Affidavit of James J. West, Pars. 1 and 2. On January 15, 1986, the grand jury issued a subpoena directed to Nicholas Colafella, Representative of the 15th District, in his capacity as Chairperson of the Committee, or to the Records Custodian of the Committee, requesting the production of the following materials:
1. Memos, reports, summaries, interview notes, record review notes, correspondence and any other documents of an investigative nature compiled, adopted, prepared or sent and received by any committee investigator including, but not limited to, the listed individual and companies named on the attached list.
2. Agenda, minutes, summaries and all transcripts of public and private hearings, along with copies of all documents or exhibits referred to in said transcripts, summaries, agenda or minutes during the testimony or in comments by committee members or staff.
This court has the power to quash or modify a subpoena duces tecum under Rule 17(c) of the Federal Rules of Criminal Procedure.
Courts have emphasized the importance of this power in view of the fact that "although grand jury subpoenas are issued in the name of the district court, they are issued pro forma and in blank to anyone requesting them without prior court approval or control". In re Grand Jury Matters, 751 F.2d 13, 16 (1st Cir. 1984). Thus, because these subpoenas are "in fact almost universally instrumentalities of the United States Attorney's office or of some other investigative or prosecutorial department of the executive branch", In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 90 (3d Cir. 1973), practical responsibility for preventing abuse of the subpoena power and for "controlling grand jury excesses" lies with this court. In re Pantojas, 628 F.2d 701, 705 (1st Cir. 1980); In re Grand Jury Matters, 751 F.2d at 16.
The Third Circuit has said that because "a presumption of regularity attaches to the grand jury's proceedings, and hence to a grand jury subpoena . . . . The party objecting to enforcement has the burden of making some showing of irregularity". Schofield I, 486 F.2d at 92. However, the United States must make a preliminary showing by affidavit, indicating that each item sought is "(1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose". In re Grand Jury Proceedings, (" Schofield II "), 507 F.2d 963, 966 (3d Cir. 1975), cert. denied, 421 U.S. 1015, 95 S. Ct. 2424, 44 L. Ed. 2d 685 (1975). The Schofield cases "soundly rejected any contention that the district court should 'rubber stamp' petitions for the enforcement of grand jury subpoenas". Schofield II, 507 F.2d at 964.
The grand jury's investigative powers are "necessarily broad . . . because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments". Branzburg v. Hayes, 408 U.S. 665, 688, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972).
Hence, the grand jury's authority to subpoena witnesses is not only historic, but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that 'the public . . . has a right to every man's evidence', except for those persons protected by a constitutional, common-law, or statutory privilege, is particularly applicable to grand jury proceedings.
Id. (Citations and footnote omitted.) Thus, the grand jury's right to "every man's evidence" is substantively limited only by express privileges, although under Federal Rule of Criminal Procedure 17(c) this court may also quash or modify a subpoena which appears to be unreasonable or oppressive in its demands. In re Grand Jury Matters, 751 F.2d at 17.
We proceed now to address the claim of privilege at issue in this case, which arises from the Speech or Debate clauses of the United States and Pennsylvania Constitutions. As a preliminary matter, although we note that the federal and state provisions are congruent,
we decline to decide this case under the Pennsylvania Constitution, despite movants' urging that we do so. See Movant's Responsive Brief (hereinafter cited as Movant's Brief) at 6-7. In United States v. Craig, 528 F.2d 773 (7th Cir. 1976) (Craig I), cert. denied, 425 U.S. 973, 96 S. Ct. 2171, 48 L. Ed. 2d 796 (1976), concurrence adopted as opinion of en banc court, 537 F.2d 957 (7th Cir. 1976) (Craig II), cert. denied sub nom. Markert v. United States, 429 U.S. 999, 97 S. Ct. 526, 50 L. Ed. 2d 609 (1976), the court established that the State Constitution was inapplicable to a state legislator's claim of privilege in a federal criminal prosecution. This was so because the Federal Rules of Evidence and the Federal Rules of Criminal Procedure contemplated "that the admissibility of evidence in criminal cases in federal courts would be governed by Federal law and would not be dependent upon diverse state laws, including state constitutional provisions." Craig I, 528 F.2d at 776. See also Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 404, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979) (recognition of immunity for state legislators reflected the court's interpretation of federal law; the decision "did not depend on the presence of a speech or debate clause in the constitution of any state"). Accordingly, we do not address the applicability of the Pennsylvania Constitution's Speech or Debate provision.
Furthermore, the Federal Constitution's Speech or Debate provision is not directly applicable to members of a state legislature. Lake Country Estates, 440 U.S. at 404. However, state legislators may in some circumstances invoke the protection of common law immunity under the federal clause. Id.; Star Distributors, Ltd. v. Marino, 613 F.2d 4, 6 (2d Cir. 1980); Craig I, 528 F.2d at 782 ("The protection afforded state legislators from liability under federal law for acts done in their legislative roles . . . is not based upon the speech or debate clause of the Federal Constitution . . . a clause that applies only to Congress, but rather upon the common-law doctrine of official immunity").
Thus, the precise question before this court is whether movants are here entitled to invoke common-law immunity from the effects of the federal grand jury subpoena. Federal Rule of Evidence 501 provides in full that:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of ...