408 U.S. 501 (1972)
Appellee, a former United States Senator, was charged in five counts of a 10-count indictment with violations of federal bribery laws.1
Counts one, three, five, and seven alleged that on four separate occasions, while he was a Senator and a member of the Senate Committee on Post Office and Civil Service, appellee directly and indirectly corruptly asked, solicited, sought, accepted, received and agreed to receive sums in return for being influenced in his performance of official acts in respect to his action, vote, and decision on postage rate legislation which might at any time be pending before him in his official capacity, in violation of Sections 201(c)(1) and 2, Title 18, United States Code.2
Count nine charged that appellee directly and indirectly asked, demanded, exacted, solicited, sought, accepted, received and agreed to receive a sum for and because of official acts performed by him in respect to his action, vote and decision on postage rate legislation which had been pending before him in his official capacity, in violation of Sections 201(g) and 2, Title 18, United States Code.3
Before a trial date was set, the appellee moved to dismiss the indictment on the ground of immunity under the Speech or Debate Clause.4 After hearing argument, the District Court ruled from the bench that based on the facts of this case, it is admitted by the Government that the five counts of the indictment which charge Senator Brewster relate to the acceptance of bribes in connection with the performance of a legislative function by a Senator of the United States.5 The District Court therefore dismissed the odd counts of the indictment as they apply to Senator Brewster.6
The United States filed a direct appeal to this Court pursuant to 18 U.S.C. § 3731.7 The Court postponed consideration of jurisdiction until hearing the case on the merits.8 The case was argued on October 18, 1971 and reargued on March 20, 1972.9 The Supreme Court decided the case on June 29, 1972.10 The appeal was from the United States District Court for the District of Columbia.11
Whether the Supreme Court has jurisdiction under 18 U.S.C. § 3731 to review the District Court's dismissal of the indictment?12
The Supreme Court has jurisdiction under 18 U.S.C. § 3731 if the District Court's decision is a decision or judgment setting aside or dismissing an indictment based upon the invalidity or construction of the statute upon which the indictment is founded.13 It also has jurisdiction if the decision is a judgment sustaining a motion in bar when the defendant has not been put in jeopardy.14
Yes. The District Court dismissed the indictment on the ground that the Speech or Debate Clause shields Senator Brewster from prosecution for alleged bribery to perform a legislative act.15 This constitutes a determination that 18 U.S.C. § 201 is constitutionally invalid as applied to Members of Congress.16 The dismissal was based on facts alleged in the indictment, not extraneous facts.17 Therefore, the Supreme Court has jurisdiction to hear the appeal under 18 U.S.C. § 3731.18
The Supreme Court has jurisdiction under 18 U.S.C. § 3731 to review the District Court's dismissal of the indictment.19
Whether a Member of Congress may be prosecuted under 18 U.S.C. §§ 201(c)(1), 201(g) for accepting a bribe in exchange for a promise relating to an official act?20
The Speech or Debate Clause protects Members of Congress from inquiry into legislative acts or the motivation for legislative acts.21 It does not protect bribery, which is not a legislative act.22 Prosecution under the bribery statutes does not require inquiry into legislative acts or their motivation.23
Yes. The indictment charges the acceptance of bribes in return for being influenced in official acts on postage rate legislation.24 Taking a bribe is not a legislative act.25 The Government need not show any legislative act or its motivation to make out a prima facie case.26 Acceptance of the bribe is the violation.27
The facts show the charges relate to acceptance of bribes in connection with performance of a legislative function.28 The Clause does not bar the prosecution because no inquiry into how the Senator spoke, debated, voted, or his motives is necessary.29 The illegal conduct is taking or agreeing to take money for a promise to act in a certain way.30 There is no need for the Government to show that appellee fulfilled the alleged illegal bargain.31
A Member of Congress may be prosecuted under 18 U.S.C. §§ 201(c)(1), 201(g) for accepting a bribe in exchange for a promise relating to an official act.32
Related opinions on this issue
Justice Brennan dissented.33 He argued that the indictment calls into question the motives for the Senator's legislative acts on postage rate legislation.34 The prosecution is barred by the Speech or Debate Clause even under a narrowly drawn statute.35
Brennan contended that the District Court's construction of the indictment is binding on this Court.36 He viewed the majority's distinction between promise and performance as artificial.37 Proof of an agreement to be influenced in legislative acts is an inquiry into their motives, whether or not the acts themselves or the circumstances surrounding them are questioned at trial.38
Brennan maintained that the principles of legislative freedom developed in Johnson and prior cases require affirmance of the District Court's dismissal.39
Joined by Justice Douglas And Justice Brennan
Justice White dissented.40 He argued that the distinction between a promise to perform a legislative act and the act itself is illusory.41 The indictment necessarily implicates the motives underlying the Senator's legislative duties.42
He emphasized that allowing prosecution for corrupt promises would enable executive control over legislative behavior.43 This runs contrary to the purpose of the Speech or Debate Clause to prevent such harassment.44 The same hazards to legislative independence inhere in the two prosecutions.45
Bribery is most often carried out by prearrangement.46 If that part of the transaction may be plucked from its context and made the basis of criminal charges, the Speech or Debate Clause loses its force.47 It will be small comfort for a Congressman to know that he cannot be prosecuted for his vote but can be prosecuted for an alleged agreement even if he votes contrary to the asserted bargain.48