burden of persuasion was placed on the Congressman. Id.
Therefore, in the present case Congressman Kelly may submit a Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (1973), cert. denied, 415 U.S. 977, 94 S. Ct. 1564, 39 L. Ed. 2d 873 (1974), index of all material which is an "integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings . . . with respect to . . . matters . . . within the jurisdiction of either House," Gravel v. United States, 408 U.S. 606, 625, 92 S. Ct. 2614, 2627, 33 L. Ed. 2d 583 (1972) quoted in In re Grand Jury Investigation, 587 F.2d 589, 595 (3rd Cir. 1978), and thus privileged under the Speech or Debate Clause. The government may be present and may contest any claims of privilege in an in camera hearing.
Despite the government's past record in this case the court expects that it will maintain the confidentiality necessary to an in camera proceeding.
Representative Kelly has also requested a protective order limiting the scope of any testimony by Mr. Cardin to matters outside the legislative area. Motion to Quash (II) at 6. Under certain circumstances, a court can examine the expected testimony of a witness to determine if it relates to material protected by the Speech or Debate Clause. See United States v. Eilberg, 465 F. Supp. 1080 (E.D.Pa.1979). But at present this court lacks the information necessary to construct an appropriate protective order. Compare id. (district court had grand jury testimony of witness and memoranda prepared by government indicating "substance" of expected testimony). Before Mr. Cardin is questioned, the government should examine the non-legislative documentary material it has acquired and summarize the areas likely to be touched upon during Mr. Cardin's testimony. After in camera inspection of this summary and consideration of Representative Kelly's arguments, a protective order can be framed.
Congressman Kelly has moved for the production of any written or recorded statements made by him and collected during the ABSCAM investigation. The motion rests primarily on Fed.R.Crim.P. 16(a)(1)(A) and the due process clause of the fifth amendment of the United States Constitution. Rule 16(a)(1)(A) applies only to defendants; it governs discovery of evidence after the return of an indictment; it is available to Congressman Kelly only if he should be indicted by a grand jury. This court is also convinced that the due process clause does not provide a constitutional basis for pre-indictment discovery. The widespread disclosure of ABSCAM raises serious questions about prosecutorial misconduct. It subjects Congressman Kelly to opprobrium for conduct not yet condemned in the courtroom. But the Congressman has available adequate remedies at the post-indictment stage to safeguard his right to a fair trial. Established and frequently used procedures provide various means of neutralizing the damaging effects of undue publicity, e.g., change of venue, appropriate continuances, effective use of the voir dire process in jury selection. The "duty under the due process clause to insure that "criminal trials are fair,' " Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845, 51 L. Ed. 2d 30 (1977) (quoting Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)), can be accomplished without resorting to pre-indictment discovery procedures likely to result in more damaging publicity. It is therefore,
ORDERED, that Intervenor's Motion to Quash be denied, and it is
FURTHER ORDERED, that compliance with the subpoena be in accordance with the procedures set out in this memorandum and order.