McSurely v. McClellan

In August 1967, Kentucky officials, executing warrants issued under a state sedition statute, arrested plaintiffs (appellees) and seized books and papers from their home. Plaintiffs obtained a federal court ruling on September 14, 1967, declaring the state statute unconstitutional, enjoining prosecution, and ordering that the seized materials in the custody of the state prosecutor continue to be held by him in safekeeping until final disposition of the case. See McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967).

This appeal involves the claim that the transportation and use of the seized materials subsequent to September 14, 1967, by the chairman of the Senate subcommittee and several members of the subcommittee staff (federal defendants) violated the constitutional and other rights of the McSurelys.

These federal defendants appeal from the District Court’s denial of their motion, for dismissal or summary judgment, which they based on the immunity provided by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1.

This court, en banc, enters these orders: (1) Reverses the, District Court’s failure to grant the motion of the federal defendants to dismiss that part of the complaint relating to the original taking of the McSurelys’ books and papers by the Kentucky authorities. (2) Reverses with directions to grant summary judgment to appellants on those parts of the complaint that complain of the alleged use made of the documents within Congress, since such use is protected by the Speech or Debate Clause. (3) Affirms the District Court, with remand for further proceedings, on the claim as to alleged dissemination of some of the documents outside of Congress. (4) Affirms by an equally divided vote, the District Court’s denial of summary judgment on the allegations concerning the action of subcommittee investigator Brick in inspecting the documents and transporting copies of some of them to Washington prior to issuance of a subcommittee subpoena.

The case is remanded for further proceedings not inconsistent with these opinions.

Opinions filed by: (a) Circuit Judge Leventhal — for a majority of the court en banc as to items (1), (2) and (3) above; and for himself and Chief Judge Bazelon, and Circuit Judges Wright, McGowan and Robinson, for affirmance as to item (4). (b) Circuit Judge Wilkey, for himself, Senior Circuit Judge Danaher, and Circuit Judges Tamm, MacKinnon and Robb, for reversal as to item (4). (c) Senior Circuit Judge Danaher, joined by Circuit Judges, Tamm, MacKinnon and Robb for dismissal of the complaint.

LEVENTHAL, Circuit Judge:

This appeal is from a District Court order entered on June 12, 1973, in an action by Alan and Margaret McSurely against Honorable John L. McClellan, Jerome S. Adler-man, Donald F. O’Donnell, and John Brick, then the Chairman, General Counsel, Chief Counsel and Investigator, respectively of the Permanent Subcommittee on Investigation of the United States Senate Committee on Government Operations (hereinafter Subcommittee); and Thomas B. Ratliff, then Commonwealth Attorney for Pike County, Kentucky. The plaintiffs, appellees here, seek compensatory and punitive damages from each defendant for alleged violations of their rights under 42 U.S.C. §§ 1981, 1983, and 1985, and under the First, Fourth, Fifth and Fourteenth Amendments of the Constitution. These are claimed to arise from individual actions and a conspiracy of defendants to harass, stigmatize, and intimidate plaintiffs through the appropriation and use of materials taken from their home in an unlawful search by Kentucky agents on August 11, 1967. The District Court’s order denied a motion of defendants McClellan, Adlerman, O’Donnell and Brick (hereinafter federal defendants) to dismiss or for summary judgment, and allowed the suit to proceed. Defendant Ratliff did not join the motion and is not a party to this appeal.

The federal defendants argue in their appeal that further proceedings would violate their right under the Speech or Debate Clause of the Constitution not to be questioned outside of Congress for their legislative acts, and that the use in a congressional investigation by defendant Senator and his aides of documents unlawfully seized by others was not barred by the Fourth Amendment.

A panel of this court in an opinion rendered October 28, 1975, one judge dissenting in part, reversed the District Court as to some of the claims in the complaint and remanded for further development “certain disputed issues which conceivably might show plaintiffs to have a cause of action.” By an order issued February 10, 1976, this court, en banc, granted appellees’ suggestion for rehearing en banc and vacated the decision of the panel. Oral argument before the full court was held on April 19, 1976.

I. BACKGROUND

The factual background of this case has been developed extensively in other decisions of this court. To aid present consideration, we review briefly the facts pertinent to this appeal, drawing generously on the outline of facts in the panel decision.

In 1967 Alan and Margaret McSurely were organizers for the Southern Conference Educational Fund, Inc., in Pike County, Kentucky. Alan McSurely was also affiliated with the National Conference of New Politics and Vietnam Summer, both unincorporated associations. On the night of August 11,1967, following issuance of an arrest warrant charging Alan McSurely with seditious activities against the Commonwealth of Kentucky in violation of KRS 432.040 and a search warrant calling for a seizure of seditious material, officials of Pike County arrested both the McSurelys and seized a large volume of books, posters, pamphlets and other materials found in their home.

On September 14, 1967, in response to a complaint filed by the McSurelys, a three-judge district court, for the Eastern District of Kentucky, found the Kentucky sedition statute facially unconstitutional, on grounds of First Amendment overbreadth and vagueness and federal preemption, and enjoined state prosecution of the McSurelys under the authority of Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). In its order, the court directed Thomas B. Ratliff, Commonwealth Attorney for Pike County, to hold in safekeeping the seized materials, pending possible appeal of the court’s decision to the Supreme Court. Shortly thereafter, Lavern Duffy, Assistant Counsel to the Subcommittee, telephoned Ratliff to inquire about the seized items. In a stipulation entered into after the three-judge court decision, counsel for the McSurelys and the United States agreed that “[t]he aforesaid telephone call represented the only contact” between Duffy and Ratliff.

As a result of the Duffy call, on October 8, 1967, John Brick, an investigator for the Subcommittee, traveled to Pikeville. After Ratliff confirmed that the seized materials contained information relating to activities of organizations in which the Subcommittee was interested, Brick examined photocopies of 234 documents delivered to his Pikeville motel room by Thadeus Scott, a Commonwealth Detective. The following morning, October 9, Scott drove Brick to the Pike County Court House, where Scott’s assistant, Herman Dotson, opened a locked door to the walk-in vault room in the Commonwealth Attorney’s office which housed the originals of the seized materials. After examining these documents, Brick proceeded to the United States Post Office in Pike-ville, where he inspected the file of three-judge court action, asking for copies of the September 14 order and the inventory of seized items. On October 12, Brick returned to Pike County Court House, where, again accompanied by Scott and Dotson he reexamined the seized materials for four hours and, according to a stipulation agreed to by the McSurelys’ counsel, for the first time took notes of the contents of the documents. Apparently, Brick was provided with copies of 234 of the documents, which he took with him on his return to Washington.

On October 16, 1967, at Senator McClellan’s direction, Brick prepared subpoenas duces tecum for certain of the McSurely materials in Ratliff’s possession which the Senator had determined would be relevant to the Subcommittee investigation of the April, 1967 riot in Nashville, Tennessee. Plaintiffs filed motions with the three-judge court to prevent Ratliff from releasing the seized materials to the Subcommittee and to direct him to return the documents to them. Considerable litigation ensued, culminating in a decision by the Court of Appeals for the Sixth Circuit, on July 29, 1968, ordering the return of the materials because the time for appeal of the three-judge district court judgment had expired, but without prejudice to the right of the Subcommittee to proceed with the enforcement of its subpoenas. On November 8, the district court for Kentucky directed the return to the McSurelys of the seized items, and on the same day the McSurelys received the 234 copies that had been given to Brick.

Upon receipt of these materials, the McSurelys were immediately served with new subpoenas similar to the original ones. The McSurelys appeared before the Subcommittee, on March 4,1969, but refused to produce the subpoenaed materials. Pursuant to a Senate resolution, they were indicted for contempt of Congress on August 29, 1969. They were tried in the United States District Court for the District of Columbia. They were convicted on June 20, 1970. On appeal this court reversed the conviction, the majority taking the position that “the framing by the Subcommittee of the subpoenas relied upon here for conviction of the McSurelys was based upon information derived from unconstitutional searches, both by state officials and by the Subcommittee’s investigator.” United States v. McSurely, 154 U.S.App.D.C. 141, 155, 473 F.2d 1178, 1192 (1972).

The action for damages presently under consideration was originally filed in the District Court for the District of Columbia on March 4, 1969, the same day that the McSurelys appeared before the Subcommittee. The District Court issued an order staying all proceedings, to continue in effect until thirty days after final resolution of the criminal case against the McSurelys. On December 26, 1970, this court vacated the stay as overbroad, and remanded for further proceedings. On August 30, 1971, plaintiffs were granted leave to file an amended and supplemental complaint. Shortly thereafter, the federal defendants filed a motion to dismiss or for summary judgment, which the District Court denied on June 12, 1973. During this period, the trial court reimposed a stay of discovery efforts by plaintiffs. After the Supreme Court decided Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), the federal defendants moved for reconsideration or certification under 28 U.S.C. § 1292(b) of the issue of their legislative immunity. The District Court denied this motion on July 9, 1973. This appeal followed.

II. THE ISSUE ON APPEAL

The sole issue here is whether the federal defendants enjoy absolute immunity under the Speech or Debate Clause, both as a matter of substantive defense and as a bar to further judicial inquiry, for the conduct alleged in the amended complaint. Pol-lowing the approach of the Supreme Court in Doe v. McMillan, 412 U.S. at 325, 93 S.Ct. at 2031, we decide here only the threshold question of legislative immunity, “indicating] nothing as to whether [plaintiffs] have pleaded a good cause of action or whether [defendants] have other defenses, constitutional or otherwise.”

The panel decision characterized the activities alleged in the amended complaint as falling into seven categories. All are asserted to have been engaged in by the federal defendants, in conspiracy with defendant Ratliff, for the purpose of harassing and intimidating plaintiffs and the organizations with which they may have been associated, driving plaintiffs out of Pike County, or carrying out a “personal vendetta” of defendant McClellan. The seven categories are as follows:

(1) The unlawful search and seizure of the McSurelys’ books and papers by Kentucky authorities.

(2) The inspection by Brick of those unlawfully seized materials.

(3) The transport by Brick of copies of 234 documents to Washington.

(4) The inspection of some or all of these 234 copies by the staff of the Subcommittee.

(5) The use of the copies, as the basis for issuance of subpoenas for some of the documents.

(6) The procurement of Contempt of Congress citations against the plaintiffs by consciously withholding from the Senate the facts relating to the challenged subpoenas.

(7) The dissemination of some or all of the 234 copies obtained by Brick to persons or agencies outside of the Subcommittee — particularly the Internal Revenue Service.

Appellants maintain that their conduct in this case is completely insulated from judicial scrutiny by the Speech or Debate Clause. We agree with the District Court that plaintiffs’ action is not entirely foreclosed by legislative immunity. However, some of the allegations implicate legislative activity falling within the protective ambit of the Clause. To ensure that appellants are not put to the burden of defending themselves as to their protected legislative activity, we proceed to identify for the District Court’s guidance on remand which of the allegations on the present record may be the subject of further proceedings, and which involve conduct entitling appellants to summary judgment in their favor.

III. CONDUCT SUBJECT TO FURTHER PROCEEDINGS

Previous decisions of the Supreme Court make clear that the Speech or Debate Clause, designed to preserve the independence and integrity of the Legislative Branch, has been “read broadly to effectuate its purposes,” United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966), including within its protective sweep those activities which are “generally done in a session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880). Accordingly, in addition to literal speech or debate within either House, the Court has recognized absolute immunity for legislators’ acts of voting, conduct at committee hearings, preparation of committee reports, authorization of committee publications and their internal distribution, and issuance of subpoenas concerning a subject “on which ‘legislation could be had.’ ” Aides are protected for conduct which would enjoy immunity if performed by the Members of Congress themselves.

However, the Court has repeatedly insisted that the Speech or Debate Clause is subject to “finite limits,” refusing to stretch its protective umbrella “beyond the legislative sphere” to conduct not “essential to legislating.” We now turn to those parts of the amended complaint that make allegations of conduct that may have breached those “finite limits,” and are subject to further proceedings on remand.

A. Dissemination Outside of Congress

We discuss, first, the allegation of dissemination of some or all of the 234 documents to individuals or agencies outside of the Subcommittee. To the extent plaintiffs charge dissemination outside of the Halls of Congress, the federal defendants are not immune to further questioning. “That Senators generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972). Even though Members of Congress or their aides frequently intercede on behalf of constituents with agencies of the Executive Branch or disseminate to the public beyond “the legitimate legislative needs of Congress” documents introduced at committee hearings, such conduct falls outside of legislative immunity. It does not meet the test set forth in Gravel, that activities other than literal speech or debate are entitled to the immunity of the Speech or Debate Clause only when they are “an integral part of the deliberative [or] communicative processes by' which Members participate in committee and House proceedings” with respect to matters before the House. 408 U.S. at 625, 92 S.Ct. at 2627. Similarly, distribution or exhibition of the 234 photocopies outside of legislative channels is not legislative activity entitled to absolute immunity by force of the Speech or Debate Clause, in the absence of a claim of legislative purpose. Such activity, if otherwise actionable under the applicable law — a matter on which we express no opinion — may be subject of a private suit for damages.

B. Inspection and Transportation of Documents Held in “Safekeeping” by Court Order

The more difficult allegations relate to what may be termed investigative activity. We have no doubt that information gathering, whether by issuance of subpoenas or field work by a Senator or his staff, is essential to informed deliberation over proposed legislation. The recent decision in Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504, 95 S.Ct. 1813, 1822, 44 L.Ed.2d 324 (1975), holds that “[t]he power to investigate and to do so through compulsory process plainly falls within” the test for legislative activity announced in Gravel. We think this principle must also extend to field investigations by a Senator or his staff. “A congressman cannot subpoena material unless he has enough threshold information to know where, to whom, or for what documents he should direct a subpoena. The acquisition of knowledge through informal sources is a necessary concomitant of legislative conduct and thus should be within the ambit of the privilege so that congressmen are able to discharge their constitutional duties properly.”

However, there are “finite limits” to the shield erected by the Speech or Debate Clause. Thus, Servicemen’s Fund requires the court to determine whether the inquiry “ ‘may fairly be deemed within [the Subcommittee’s] province.’ ” 421 U.S. at 506, 95 S.Ct. at 1823. This requirement of congressional authorization of the inquiry by the particular subcommittee involved was clearly met in this case. In the broad, the investigative activity here concerned matters “on which ‘legislation could be had.’ ” Id. at 506, 95 S.Ct. at 1823. The Senate Resolution of August 11, 1967 authorized an investigation into the causes of civil and criminal disorder that were racking the nation during this period. And there was reason for investigative focus on the McSurelys. A riot had occurred on April 8-9, 1967, in Nashville, Tennessee. The McSurelys have stipulated that they attended a meeting of the Southern Conference Educational Fund in Nashville immediately before the April, 1967, riot. Commonwealth Attorney Ratliff advised Brick in Pikeville on October 8 that some of the materials seized from the McSurelys’ home contained reference to that meeting.

This does not end our inquiry. Even though there is broad authorization for an investigation and justification for focus on particular individuals, a Member of Congress or congressional employee is not free to use every conceivable means to obtain investigatory materials, without fear of criminal prosecution or civil suit. The Court has taken “a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.” Gravel v. United States, 408 U.S. at 620, 92 S.Ct. at 2625. In Gravel the Court held the Senator and his aide immune from questioning with respect to conduct that transpired at a committee hearing, but refused to extend immunity to grand jury questioning concerning third-party crime or criminal conduct by the Senator or his aide related to preparation for the hearing. Thus, the grand jury was permitted to “trac[e] the source of obviously highly classified documents that came into the Senator’s possession,” provided “no legislative act is implicated by the questions,” id. at 628, 92 S.Ct. at 2628, notwithstanding the fact that those documents were an integral part of the preparation for the committee proceeding that was held protected conduct. Dombrowski v. East-land, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), holds that the Speech or Debate Clause will not protect a Member or employee of Congress from suit if he engages in a conspiracy with state officials to obtain information by unlawful search and seizure in violation of the Fourth Amendment.

The employment of unlawful means to implement an otherwise proper legislative objective is simply not “essential to legislating.” As with taking a bribe, resort to criminal or unconstitutional methods of investigative inquiry is “no part of the legislative process or function; it is not a legislative act.” United States v. Brewster, 408 U.S. 501, 526, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507 (1972). While “protecting the rights of others” in such cases “may have to some extent frustrated a planned or completed legislative act,” the focus on means permits the court to afford relief “without proof of a legislative act.” Gravel v. United States, 408 U.S. at 621, 92 S.Ct. at 2625.

As to the matter of conspiracy in the initial raid of the McSurelys’ home by Kentucky authorities, the amended complaint alleges Ratliff’s involvement, but it does not appear to charge any of the federal defendants with promotion of or participation in the original search and seizure. The amended complaint merely asserts that “[a]t or about the time of the initial unconstitutional and illegal raids” the federal defendants, and unknown others, “undertook a plan of action to [cjontinue the course of action undertaken by defendant Ratliff . .” Although there is a certain tolerance in the federal system of lapses in pleading and curative amendments, at this late stage of an action which was originally filed on March 4, 1969, we must hold plaintiffs to their failure specifically to allege that any of the federal defendants promoted or participated in the Kentucky raid. Appellants are entitled to dismissal at this juncture of any claim that they participated in the initial unlawful seizure by the Kentucky officials.

The amended complaint clearly charges a conspiracy of the federal defendants, in concert with Ratliff, to inspect, obtain copies of, and transport back to Washington private and personal correspondence among the seized materials “notwithstanding the [safekeeping] order of the United States District Court,” and “without knowledge of the plaintiffs. . . . ” Although plaintiffs have not sharply articulated their theory of liability, their allegations are unmistakably addressed to a wrongful inspection and transportation of documents (causing constitutional injury) which were independent of the initial raid by Kentucky officials. Without deciding whether Brick, and the others allegedly acting in concert with him, did indeed violate the Fourth Amendment by his inspection and transportation back to Washington of documents that were under a court-imposed “safekeeping” order, and, if so, whether other defenses are available to escape or mitigate liability in damages, there is evidence in the record as it presently stands “which affords more than merely colorable substance” to the claim of an independent Fourth Amendment violation by Brick.

We note that the prior decision of this court reversing the McSurelys’ conviction for contempt of Congress was premised on the fact that Brick committed an independent Fourth Amendment violation by his unauthorized inspection and transportation back to Washington of the 234 documents. Although our prior decision is not res judicata as to appellants who were not parties to the criminal proceeding, the findings and conclusions stated therein are surely pertinent to the determination of whether plaintiffs have made enough of a proffer of unconstitutional investigative activity to survive a motion for summary judgment grounded on legislative immunity. In unmistakable terms, this court rejected the contention that Brick’s conduct was merely passive receipt of materials from one who had lawful custody and authority to grant access to a legislative investigator. We stated:

That activity might more appropriately be described (1) as an unconstitutional exercise of power by the Commonwealth attorney, Ratliff, and his subordinates at a time when Ratliff had no right whatever in and to these papers except to hold them in safekeeping (pending appeal) pursuant to the order of the three-judge court; and (2) as an unlawful encroachment by the Subcommittee investigator himself upon the rights of the McSurelys under the Fourth Amendment. Not only was the search and seizure of appellants’ property by the Commonwealth officials illegal, but the subsequent search and use of that property by the Subcommittee investigator, with the cooperation of the Commonwealth attorney, violated appellants’ constitutional right to have their property safe and secure from unwarranted inspections.

United States v. McSurely, 154 U.S.App. D.C. at 155, 473 F.2d at 1192.

This case is shaped by appellants’ position in the pleadings. It does not involve, nor require probing what legal consequences would be appropriate for, an instance of a truly passive receipt by Subcommittee personnel. This is not a case where appellants had nothing more to do with the seized documents than to be in the office at a time when, without prearrangement, Ratliff spontaneously either deposited the documents on Brick’s desk in the Subcommittee office in Washington or disclosed their contents to the public at large. The pleadings before us are entirely congruent with the situation as presented in the stipulations of counsel for the McSurelys and the United States in an earlier case and Ratliff’s testimony at the contempt trial, that the inquiry was initiated by the Subcommittee and that Brick took active steps to obtain access to the seized materials and cart back from Kentucky to Washington copies of the McSurelys’ documents, including two separate visits to the walk-in vault room where the originals were stored. Appellants’ counsel contend that Brick “played no role in the selection of the documents he would be given.” Brick’s own testimony at the contempt trial indicates that his activities included some discretion in selection of what he examined and re-examined. Moreover it cannot rightly be put that there is no claim within the cognizance of the Fourth Amendment because of the cooperation of the custodian. Cooperation of a custodian without authority to grant access may obviate use of force, but it does not validate an otherwise unlawful search and seizure.

The scope of Ratliff’s actual authority as court-designated custodian to hold in “safekeeping” the seized materials remains an issue. While in the absence of the “refinement which can occur only as a result of trial” we can not make a conclusive determination, we can state with fair certainty that plaintiffs have made out a prima facie case to the effect that the purpose of the “safekeeping” order of the three-judge court was to preserve the seized items both for the McSurelys’ benefit and for the orderly administration of the judicial process through “appeal or otherwise,” and that Brick’s investigative activity outside of the channels established by the court violated its order.

The three-judge court had found unconstitutional on grounds of First Amendment overbreadth and vagueness and, alternatively, federal preemption the Kentucky sedition statute under which the original raid was made. The court also enjoined further state prosecutions under the statute, largely because it discerned a concerted effort by state and county officials to “freeze” the McSurelys and their associates out of Pike County. With the statutory predicate declared unconstitutional, there was no legal justification for the intrusion into the McSurelys’ home or for the seizure of their papers, and certainly none for the retention of those papers. The court did not return the seized materials to their owners because it sought to preserve the existence of the res in the event of appeal to, and reversal by, the Supreme Court. Toward this end, the court made Ratliff, then the state’s chief attorney for the county, custodian over the documents for a limited purpose, but it did not empower him to act without further permission to make these materials available to anyone of his choosing. Ratliff was apparently of this view at first, for he testified at the McSurelys’ contempt trial that he tried to obtain the court’s permission before granting Brick access to the documents. Without obtaining the court’s permission, or seeking the consent of the McSurelys or their lawyer, or even advising his co-custodian, the United States Marshal, Ratliff acceded to Brick’s request for access.

The seriousness of the situation is not mitigated by the possibility that the three-judge court might have deemed it appropriate to honor a request from Ratliff or the Subcommittee to permit Brick to examine pertinent papers. Indeed, that only accentuates the gravity of the situation. Instead of acting lawlessly, the Subcommittee investigator should have used proper process which, in turn, would have permitted the court, if it granted the request, or the McSurelys, if their permission had been sought, to safeguard against encroachment beyond the legitimate legislative sphere, into personal and private papers that lacked even arguable relevance to the legislative inquiry.

Nor do we think that events occurring subsequent to Brick’s actions in Pikeville on October 8-9 and 12, 1967, rebut plaintiffs’ present showing that Brick committed an independent Fourth Amendment violation. If Brick’s prior search-and-taking was unlawful, it could not be sanitized by the subsequent issuance by the Subcommittee of subpoenas duces tecum. Nor can its validity be established by the subsequent orders of the three-judge court, issued while its September 14, 1967, order was still subject to appeal and review, refusing to direct Ratliff to return to the McSurelys the seized documents called for by the Subcommittee subpoena. The issue before the court was whether the McSurelys had a right to bar access to documents sought by a facially proper subpoena duces tecum. Apparently, and appellants do not contend otherwise, this matter was decided without regard to Brick’s pre-subpoena activities. The court’s decision to honor proper process issuing from the Subcommittee was not intended as, nor did it constitute, approval of the prior search and seizure of Brick, pursued in a surreptitious manner and without resort to the procedures of the very court which had intervened and asserted control over the seized materials.

The Calandra Doctrine

Appellants contend throughout that, in addition to the bar raised by the Speech or Debate Clause, the Supreme Court’s decision in United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), saves them from any liability on Fourth Amendment grounds for Brick’s conduct. The theory seems to be that if the mere use of information by a grand jury obtained from a prior unlawful search and seizure does not state an independent Fourth Amendment violation, neither does the mere use by Brick and the Subcommittee of the fruits of prior unlawful conduct by the Kentucky authorities.

Without determining whether Calandra applies with full force to the legislative context, we find maintenance of the present action wholly congruent with Calandra. In Calandra the government agent had taken custody and authorized delivery of the seized materials to the grand jury before there was any judicial determination of illegality and ruling restricting access to the materials. Here prior to Subcommittee access a court had intervened and declared the state search and seizure without legal justification because the operative statute was unconstitutional. Through the “safekeeping” directive the court asserted control over the seized documents, and did not authorize delivery to the Subcommittee. In Fourth Amendment terms, Calandra involved a single search and seizure by federal agents and mere “derivative use” by the grand jury, whereas two separate, independent searches and seizures took place here. When Calandra refused to apply the exclusionary rule, it noted the availability of an action for damages for the unlawful taking by government agents. To raise Calandra as a bar to this action is to extend that decision beyond its rationale and express limitations, to the effect that there is no action for any constitutional wrong by federal defendants, with the McSurelys “necessary left remediless in the face of an unlawful search and seizure.” 414 U.S. at 354-55 n.10, 94 S.Ct. at 623. Calandra does not bar plaintiffs’ action against Brick, and any federal defendants who acted in concert with him, for acting outside of judicial channels in inspecting the materials in court safekeeping and transporting copies back to Washington.

C. Selection and Seizure of Documents Concededly Irrelevant to Legislative Inquiry

We hold that even if Brick’s examination of the materials had not violated the three-judge court’s “safekeeping” order, trial may proceed on plaintiffs’ claim that Brick’s selection and transportation back to Washington of documents of a private nature which he acknowledged to be irrelevant to the Subcommittee inquiry violated their right of privacy and is outside the protection of legislative immunity. This case is unusual because Brick in testimony at the McSurelys’ contempt trial conceded that when “he went to Pikeville to examine the documents in the Court House,” he looked through the papers and books and determined there were “many” items that he “didn’t need at all,” including a letter addressed to plaintiff Margaret McSurely, as “Dearest Cucumber,” from a prominent newspaper columnist.

That the investigation of the McSurelys fell within the broad authorization of the Senate resolution does not render everything done by investigator Brick with respect to the McSurelys privileged activity which is “essential to legislating.” For an activity to be considered “essential to legislating” it must be “an integral part of the deliberative and communicative processes” dealing with matters within the jurisdiction of Congress. Gravel v. United States, 408 U.S. at 625, 92 S.Ct. at 2627. Even in the case of investigation by compulsory process, the Court in Servicemen’s Fund cautioned that “[although the power to investigate is necessarily broad it is not unlimited. Its boundaries are defined by its source.” 421 U.S. at 504 n.15, 95 S.Ct. at 1822. The Court cited with approval Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957), which states that “[tjhere is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress,” and “there is no congressional power to expose for the sake of exposure.” 354 U.S. at 187, 200, 77 S.Ct. at 1179, 1185.

In the usual case if the activity is arguably within the “legitimate legislative sphere” the Speech or Debate Clause bars inquiry even in the face of a claim of “unworthy motive.” As Justice Frankfurter explained in Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951):

The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives.

The principle is designed to give legislators and their aides a certain measure of elbowroom to pursue legislative activity without the inhibitions that necessarily flow from exposure to suit because of the mere “conclusion of a pleader” or “a jury’s speculation as to motives.”

However, the immunity shield that protects conduct of legislators and staff in an area that is at least arguably within a proper legislative sphere, that pertains to a subject “on which ‘legislation could be had,’ ” Eastland v. United States Servicemen’s Fund, 421 U.S. at 504 n.15, 95 S.Ct. at 1822, and in such sphere protects against lawsuits that are based on mere allegation or speculation, is not a license to invade privacy where no legislative purpose can be plausibly interposed. The fact that Brick took and transported concededly extraneous material — and it is significant that he seized “some personal letters” — takes this case outside the protection of legislative immunity. While Servicemen's Fund notes the legislative nature of investigation, it reiterates that the subject must be one on which “legislation could be had.” Brick’s testimony at the contempt trial ultimately may be explained away to the satisfaction of a jury. But it is plainly sufficient to preclude an automatic dismissal of the lawsuit at the threshold, on the basis of legislative immunity. “To hold otherwise would be to invite gratuitous injury to citizens for little if any public purpose.” Doe v. McMillan, 412 U.S. at 316-17, 93 S.Ct. at 2027.

IV. PROTECTED LEGISLATIVE CONDUCT

We turn to the allegations pertaining to staff inspection within the Subcommittee of the 234 photocopies, the use of the copies as the basis for issuance of subpoenas for some of the documents, and the procurement of contempt of Congress citations against plaintiffs. Here, we find further inquiry barred by the Speech or Debate Clause.

The law is clear that even though material comes to a legislative committee by means that are unlawful or otherwise subject to judicial inquiry the subsequent use of the documents by the committee staff in the course of official business is privileged legislative activity. In Dombrowski v. Burbank, 123 U.S.App.D.C. 190, 192-93, 358 F.2d 821, 823-24 (1966), this court refused to enjoin the chairman and chief counsel of a Senate subcommittee from using records that had been seized by state officials in an alleged conspiracy with the subcommittee. “Since the documents are now held by the Subcommittee, they are accessible to the [defendants] only by virtue of their officials positions with that body. We cannot prohibit, nor are we asked to prohibit, [their] use of the documents in the course of their official business for the Subcommittee; and neither do [plaintiffs] seek any restraint upon the Subcommittee itself.” We also held the defendants immune against answerability in damages for the issuance of subpoenas to obtain the records. The Supreme Court upheld our disposition of the “claims which related to the take-over of the records by respondents after the ‘raids.’ ” Dombrowski v. East-land, 387 U.S. at 83-84, 87 S.Ct. at 1427 (emphasis in original). Similarly in Gravel v. United States, although the Court permitted grand jury inquiry as to third-party crime or criminal acts by the Senator or his aide “relevant to tracing the source of obviously highly classified documents,” it barred questioning as to the Senator’s or his aide’s conduct at the subcommittee meeting where the documents were read into the record, the motives behind that conduct, communications between the Senator and his aide during the term of their employment which were related to the meeting or any other legislative act of the Senator, and any act not in itself criminal performed in preparation for the meeting. 408 U.S. at 628-29, 92 S.Ct. at 2628.

Likewise foreclosed is plaintiffs’ claim of invasion of privacy based on retention and display of their private papers within the Subcommittee for non-legislative purposes. Although the federal defendants are not immune from inquiry as to dissemination of the 234 photocopies to individuals or agencies outside of Congress, dissemination within the Subcommittee is privileged activity. The mere retention— without dissemination or use — of the copies cannot be the subject of judicial inquiry. Such retention may be subject to abuse, but judicial inquiry on a claim that documents were retained beyond the time needed to determine relevancy to legislative purpose would embroil the courts in the kind of review of legislative performance that is prohibited by the Speech or Debate Clause.

The same applies to the claim based on the Subcommittee’s issuance of the two sets of subpoenas and attempt to enforce the second set by citing the McSurelys for contempt of Congress. The Subcommittee here employed proper process for information “on which ‘legislation could be had.’ ” We note that the subpoenas called for materials that were at least arguably relevant to its investigation, but did not call for the production of Mrs. McSurely’s letter or any other demonstrably irrelevant private correspondence. Under these circumstances Servicemen’s Fund prevents further inquiry into plaintiff’s charge that the Subcommittee’s purpose was to harass and intimidate them in the exercise of their First Amendment rights. The Subcommittee’s issuance of subpoenas is privileged activity, notwithstanding plaintiffs’ bare allegation that the real purpose behind the subpoenas was to “cover-up” the earlier improper conduct by Brick, and the further assertion that had there been full disclosure the Subcommittee would not have issued the subpoenas, and the Senate would not have approved the contempt citations.

V. ON REMAND

We hold, as a matter of law, that appellants are entitled to summary judgment on the allegations in the amended complaint pertaining to the Subcommittee staff’s inspection of the 234 documents that Brick brought to the Subcommittee, the utilization of the information obtained by Brick as the basis for congressional subpoenas, and the issuance of contempt of Congress citations against the McSurelys. Since no allegation has been made as to conspiracy in the original raid of the McSurelys’ home, appellants are entitled to dismissal on this point.

We leave for the District Court on remand the initial determination as to (1) whether any cause of action against defendants Brick and Adlerman survives their deaths; (2) whether Brick’s inspection of the seized material put in Ratliff’s possession under the three-judge court’s “safekeeping” directive, and Brick’s transport to Washington of copies of 234 documents, violated the McSurelys’ rights under the Fourth Amendment; (3) whether Brick selected and transported to Washington copies of documents he knew to be wholly unrelated to the legislative inquiry, and, if so, whether such conduct was actionable under the applicable law; (4) whether any other federal defendants acted in concert with Brick in action for which he enjoys no legislative immunity; (5) whether any of the federal defendants distributed copies of documents in the Subcommittee’s possession to individuals or agencies outside the Congress, and, if so, whether such distribution was actionable under the applicable law; and (6) other matters identified in this opinion as requiring further development. Of course, if Brick or the other appellants have defenses to liability, other than the claim of absolute immunity from suit, these should be pleaded and would be a matter for initial determination by the District Court.

Although plaintiffs have alleged Brick’s involvement in possible actionable conduct with sufficient factual particularity to permit trial to proceed as to him, the record at present is silent on the involvement of defendants McClellan, Adlerman and O’Donnell “in any activity that could result in liability.” Dombrowski v. Eastland, 387 U.S. at 84, 87 S.Ct. at 1427. Plaintiffs allege that the latter defendants were acting in concert with Brick in the actions that are pertinent. If that is so, they enjoy no greater immunity for conduct not “essential to legislating” than Brick, their agent. Of course, an allegation is not proof. But at this stage of the case, given that the argument of parties thus far has been drawn in terms of whether or not the Speech or Debate Clause erects a complete barrier to this action, we are unable to say on the basis of the undisputed facts that the other federal defendants are constitutionally entitled to summary judgment excusing them from further inquiry, even though Brick is not. The path remains open for these defendants to make a renewed motion for summary judgment on the ground that the McSurelys have failed to adduce specific facts “which affords more than merely colorable substance,” Dombrowski v. Eastland, 387 U.S. at 84, 87 S.Ct. at 1427, to the assertion of concert with Brick in conduct that survives the legislative immunity bar. Since the Speech or Debate Clause acts as an exclusionary rule and testimonial privilege, as well as substantive defense, plaintiffs must prove their case through evidence which “does not draw in question the legislative acts of the defendant member of Congress [and his aides] or [their] motives for performing them.” United States v. Brewster, 408 U.S. at 526, 92 S.Ct. at 2544, quoting United States v. Johnson, 383 U.S. at 185, 86 S.Ct. 749.

SUPPLEMENT

Since our opinion anticipates many of the points raised in Judge Wilkey’s opinion, we have decided not to retrace and interlard the body of the opinion with responsive material. We think it more useful to provide focus through the vehicle of a supplemental statement.

I.

Most of Judge Wilkey’s characteristically vigorous opinion is beside the point. He assumes that the Fourth Amendment liability of Congressional investigator Brick is premised on the acceptance and use of the fruits of the unlawful activity of another. On the contrary, our ruling is based on the investigator’s own unlawful activity — the inspection and transportation of copies of materials in violation of a three-judge federal district court order.

We need not be detained by Judge Wilkey’s traverse of cases like Calandra, Elkins and Sherwin. What makes all the difference in the world is that in this case a Federal court did issue an order, did make a determination that papers and other material had been seized by state authorities under an unconstitutional statute, did assert custody over the seized documents, and that investigator Brick examined them and took copies without resort to the procedures of the Federal court that had intervened and asserted control over the materials. It would not be analysis but legerdemain, to characterize Brick’s actions in violation of a court order as part of a subsequent “transfer” inherently unreachable under the Fourth Amendment. The case is entirely different from Calandra.

We do not think it can be seriously argued that conduct like Brick’s, compounding his own inspection of documents with transportation to permit access by others, fails to state a Fourth Amendment violation in a case where there has been a court order that establishes a custodian with possession (pending appeal) of papers seized unlawfully from plaintiffs, and provides that any other access requires court approval (in the absence of permission by plaintiffs).

Judge Wilkey misses the point in his argument (e. g., at p. 140 of 180 U.S.App.D.C., p. 1316 of 553 F.2d) that Brick’s activity involves no legal injury not already wrought by the state officials. Even assuming for discussion plaintiffs had no valid claim against any state officials for the seizure from their home, perhaps on the theory that the taking was under a warrant to enforce a state sedition statute not yet held unconstitutional, plaintiffs may nevertheless maintain an action against Brick for his inspection and taking of papers after the federal court held invalid both the state statute and the continued retention of the seized materials by the state prosecutor except as a court custodian.

Judge Wilkey’s opinion rests on a restricted reading of the court’s “safekeeping” order of September 14, 1967.

Physical preservation of the res — during the course of a potential appeal to avoid mootness problems — was one of the court’s concerns but by no means the only or even predominant concern. This emerges from an examination of the decision itself. The order accompanied a full-scale decision on the merits, granting substantial relief to the McSurelys on First Amendment grounds. In addition to declaring the state sedition statute unconstitutionally vague and overbroad, the court enjoined state prosecutions pursuant to the statute under the authority of the landmark Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). The injunction issued largely because the court perceived a concerted effort by state and county officials to “freeze” the McSurelys and their associates out of Pike County. The court’s language on this point is illuminating. “The conclusion is inescapable that criminal prosecutions were instituted, at least in part, in order to stop plaintiffs’ organizing activities in Pike County. That effort has been successful. Not only has there been the ‘chilling effect’ on freedom of speech referred to in Dombrowski, there has been in fact a freezing effect.” McSurely v. Ratliff, 282 F.Supp. 848, 852-53 (E.D.Ky.1967).

Judge Wilkey seeks to avoid the absurdity of a construction that would make this a mere “hold safe” order by repair carpentry, that the order at least in “spirit,” may have required Ratliff to deny access to some “prosecutors” (p. 135 of 180 U.S.App.D.C., p. 1311 of 553 F.2d), yet authorized him to grant access to anyone he deemed to have a legitimate interest (p. 140 of 180 U.S.App.D.C., p. 1316 of 553 F.2d).

Given the context of the court’s order, and its sensitivity to the First Amendment dimension of the actions taken by Kentucky authorities against the McSurelys, the sensible reading of the court’s order, and the one adopted by this court in 1972, is that Ratliff was directed to hold the materials as co-custodian for the court, during the period allowable for appeal, not with a right to grant access to others as he might determine in the exercise of personal discretion, but with questions of access to or other use or disposition of the materials reserved for determination by the court. Ratliff himself was apparently of this view, for he tried to obtain the court’s permission before acceding to Brick’s request for access. There is nothing in the record as it stands that rebuts this reading of the “safekeeping” order.

Judge Wilkey’s opinion makes much of the court’s orders of October 30 and December 13, 1967, issued before the time to appeal the September 14 ruling had expired. These orders pertained to a motion by the McSurelys to enjoin Ratliff from releasing any of the seized materials called for by the Subcommittee subpoena. The court refused to block the Subcommittee’s access by way of subpoena to the seized materials. Judge Wilkey’s opinion assumes that this refusal to interfere with a facially proper subpoena of a Congressional subcommittee “on a subject on which legislation could be had” is a sub silentio approval of the challenged activity of Brick prior to and in the absence of a subpoena or ruling, and establishes that Brick’s activity had not contravened the court’s order.

Out of the blue, Judge Wilkey’s opinion conjures up a judicial determination by the three-judge court. It does not even appear that Brick’s pre-subpoena investigation and transportation of copies of the seized documents had been raised as an objection to the subpoena. More importantly, Judge Wilkey’s opinion does not claim that applicable legal doctrine established then or establishes now that prior invalidity under the Fourth Amendment in obtaining documents — however vulnerable in a damage action — would have been material as authorizing a court to interfere with a subpoena of a subcommittee. There is neither a statement by the three-judge court nor any basis for implication that the three-judge court considered it material.

The Supreme Court ruled in United States Servicemen’s Fund v. Eastland, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975), that notwithstanding allegations of First Amendment violations the judiciary may not prevent implementation of a Senate subcommittee subpoena duces tecum directing certain banks to produce records of a particular account. We are not called upon to determine whether Servicemen’s Fund applies when the records sought are in the custody of the court. It is enough— on this motion for summary dismissal of the damage action — to say that the action of the three-judge court in declining the McSurleys’ invitation to hamper a subpoena investigation of a coordinate branch of government, cf. Hearst v. Black, 66 U.S. App.D.C. 313, 87 F.2d 68 (1936), is not inconsistent with its having a view that the McSurelys could have redress in damages for Brick’s pre-subpoena conduct.

We hold that the District Court correctly denied the motion to dismiss or for summary judgment on the claim of a Fourth Amendment violation'by Brick and the federal defendants who acted in concert with him. The showing made by the McSurelys suffices to avoid any absolute bar to suit, particularly when it is compared with the proffer, held sufficient in Dombrowski v. Eastland, 387 U.S. 82, 84, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), involving a possible misdating of a committee subpoena with the result that the date of the subpoena coincided with the date of the original search and seizure by state authorities. On the record as it presently stands, Brick is not entitled to demand absolute immunity from suit as a matter of law, and we need not consider the possibility that the defense may hereafter find and adduce material from the record of the three-judge court that would advance the kind of speculation raised by Judge Wilkey.

II.

We turn to the McSurelys’ privacy claim against Brick. Since this appeal presents only the threshold question of immunity, we have no occasion to indicate whether they have pleaded a good cause of action or there are defenses on the merits. Doe v. McMillan, 412 U.S. 306, 325, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973).

Assuming for discussion that the McSurelys do not have a cause of action for constitutional tort, because of the reasoning of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), or other authority, they may have a good claim for common law invasion of privacy that is maintainable in federal court under the doctrine of pendent jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), and may accordingly move to amend their pleadings to conform to the evidence, F.R.Civ.P. 15(b). Under Doe v. McMillan, supra, these are matters that should not be decided on a motion that did not present anything more than a threshold barrier of absolute legislative immunity from suit.

Of course, Brick’s concession cannot bind the Subcommittee, its members, or other of its agents. As to the privacy claim against Brick, Judge Wilkey speculates as to plausible legislative purposes behind Brick’s seizure of a love letter and other personal documents. On the record as it stands, Brick by his own mouth conceded that “many” of the items he brought to Washington were unrelated to his duties. Conceivably this testimony may be explained away. As of now we are not aware that any claim of legislative need has been interposed for the love letter from Drew Pearson to Magaret McSurley — a letter that Brick testified he held in his personal file, under lock and key, on direction of Subcommittee chairman McClellan. Certainly the record as it stands does not entitle Brick to summary judgment.

. During the pendency of this action, defendants Brick and Adlerman died. On December 4, 1974, this court, sua sponte, ordered the parties to file memoranda on whether a tort action against Brick or his personal representative survives that defendant’s death. Both appellants and appellees responded that the action was maintainable against the personal representative of Brick’s estate. Presumably the same would follow for defendant Adlerman. This matter should be addressed by the District Court on remand.

. Jurisdiction is founded on 28 U.S.C. §§ 1331, 1332, 1343(3) and (4).

. Defendant Ratliff is named in the amended complaint and filed an answer, see Appendix “A” to Br. for Appellees for the Court, Sitting En Banc. Since he did not file any motions in response to the issues raised in this action, there has been no pre-trial activity with respect to him. Plaintiffs maintain they have not discontinued the proceedings as to him. Id. at 17-18 n. 7. The Government does not represent Ratliff and this appeal is not taken in his behalf. Br. for Appellants at 11 n. 8.

. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Art. I, § 6, cl. 1.

. McSurely v. McClellan, 172 U.S.App.D.C. 364, 369, 521 F.2d 1024, 1029 (1975).

. See McSurely v. McClellan, 138 U.S.App.D.C. 187, 189-90, 426 F.2d 664, 666-67 (1970); United States v. McSurely, 154 U.S.App.D.C. 141, 143-47, 473 F.2d 1178, 1180-84 (1972); McSurely v. McClellan, supra note 5, 172 U.S. App.D.C. at 369-73, 521 F.2d at 1029-33.

. Reference will also be made throughout this opinion to the stipulations that were entered into, on December 5, 1967, between counsel for the McSurelys and the United States following the decision in McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967) (hereinafter Stip.), App. 20-22; and to Defendants’ Appendix in the related case, United States v. McSurely, 154 U.S.App.D.C. 141, 473 F.2d 1178 (1972) (hereinafter D.A.), which was filed as part of the record in this action on September 14, 1973.

. McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky. 1967).

. It is further ordered that all books, papers, documents and other material now in the custody of the Commonwealth Attorney of Pike County, Ratliff, reflected by the Inventory filed in this action continue to be held by him in safe keeping until final disposition of the case by appeal or otherwise.

D.A., II, 962.

. Apparently in response to queries from reporters, Ratliff had previously announced that the seized materials would be made available to congressional committees. See Answer of Thomas Ratliff, supra note 3, at 2A; Ratliffs testimony at the McSurelys’ contempt trial, D.A., I, 399.

. Stip. 3, App. 20.

. Stip. 11, App. 21.

. Stipulation 9 states that on the morning of October 9, 1967, “Mr. Brick brought with him the xeroxed material which Mr. Scott had furnished to him the night before and returned it to Mr. Scott.” App. 20-21. This appears to be an error, because Brick himself, in testimony at the McSurelys’ contempt trial, stated that he took back to Washington the 234 photocopies that Scott had given to him on October 8, and these were returned to Scott on August 18, 1968, and received by the McSurelys on November 8, 1968. D.A., II, 728-30. Appellants concede this was the case, Br. for Appellants at 7. This court so found in our 1972 ruling, United States v. McSurely, supra note 7, 154 U.S.App.D.C. at 145-46, 154, 473 F.2d at 1182— 83, 1191.

. McSurely v. Ratliff, 398 F.2d 817 (6th Cir. 1968). See discussion in note 58 infra.

. There is some dispute as to when Brick returned the 234 copies. Defendants assert that Brick made the return to Commonwealth Detective Scott on August 14, 1968 for which he received a receipt, although the actual transfer to the McSurelys did not take place until November 8. D.A., II, 730. Plaintiffs counter that Brick retained possession until the November 8 transfer. To the extent this issue is relevant to the claims that survive our partial grant of summary judgment on the ground of legislative immunity, see note 25 infra, it is a matter for initial determination by the District Court on remand.

. McSurely v. McClellan, 138 U.S.App.D.C. 187, 426 F.2d 664 (1970).

. After the District Court vacated the stay on June 12, 1973, plaintiffs proceeded to depose defendant O’Donnell on July 10 and Robert E. Dunne, a former employee of the Subcommittee, on August 3. No deposition has been taken from Senator McClellen, although he filed an affidavit denying plaintiffs’ allegations, App. 56-61. Further discovery came to a halt after the federal defendants filed a notice of appeal on August 6, 1973.

. The District Court’s denial of the motion to dismiss or for summary judgment based on a claim of legislative immunity is an appealable final order for purposes of 28 U.S.C. § 1291. On this point, we adopt the reasoning of the panel decision. McSurely v. McClellan, supra note 5, 172 U.S.App.D.C. at 370-72, 521 F.2d at 1030-32.

. McSurely v. McClellan, supra note 5, 172 U.S.App.D.C. at 373, 521 F.2d at 1033.

For a discussion of the claim based on dissemination to persons or agencies outside of Congress, see note 25 infra.

. See Doe v. McMillan, 412 U.S. 306, 311-13, 317-18, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Gravel v. United States, 408 U.S. 606, 615-16, 624, 628-29, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972); Tenney v. Brandhove, 341 U.S. 367, 377-78, 71 S.Ct. 783, 95 L.Ed.2d 1019 (1951).

. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504-06, 95 S.Ct. 1813, 1823, 44 L.Ed.2d 324 (1975).

. See Eastland v. United States Servicemen’s Fund, 421 U.S. at 507, 95 S.Ct. 1813; Doe v. McMillan, 412 U.S. at 317-18, 93 S.Ct. 2018; Gravel v. United States, 408 U.S. at 620-22, 92 S.Ct. 2614. Compare Dombrowski v. Eastland, 387 U.S. 82, 84-85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967) discussed in note 36 infra.

. Doe v. McMillan, 412 U.S. at 317, 93 S.Ct. 2018.

. Gravel v. United States, 408 U.S. at 621, 624-25, 92 S.Ct. 2614.

. The claim of dissemination of some or all of the 234 documents to the Internal Revenue Service (IRS) was not made in the amended complaint. This claim arose because of the disclosure of certain IRS documents, obtained as a result of a Freedom of Information Act suit, which indicated contacts, beginning on August 28, 1968, between members of the Subcommittee staff and the IRS concerning formal access to each other’s files.

On November 25, 1974, plaintiffs filed a supplemental affidavit lodging these recently disclosed materials with the court. The federal defendants countered on January 24, 1975, arguing that even if the IRS had gained access to the Subcommittee files at some point after August 28, 1968, the McSurelys could not have been harmed thereby because the 234 copies were returned to Commonwealth Detective Scott on August 14, 1968 (and received by the McSurelys on November 8, 1968), and Brick had testified at the McSurelys’ contempt trial that he made no copies and that neither he nor the Subcommittee retained any of the documents, D.A., II, 730. Plaintiffs, in their reply to defendants’ response, filed January 31, 1975, dispute both that the documents were turned over to Scott on August 14, 1968 and that no copies were made. Since we affirm the District Court’s denial of summary judgment on this claim, we leave the resolution of this question to the District Court on remand.

Plaintiffs’ amended complaint also alleges that Brick exhibited copies of the 234 items to unknown persons causing plaintiffs damage and embarrassment, and that McClellan “used the instrumentality of the [Subcommittee] investigation to carry out a personal vendetta between himself and a certain personage of prominence named in some of the private correspondence of the plaintiff Margaret McSurely.” Amended and Suppl.Compl. ¶¶ 19, 28(b)(ii), App. 45, 50. However, there is no specific allegation that Brick embarrassed plaintiffs or that McClellan pursued his purported “vendetta” by dissemination outside of the Subcommittee itself. The claim of dissemination outside of the Halls of Congress apparently rests on access by IRS officials.

. See United States v. Brewster, 408 U.S. 501, 512-14, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972); United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966). As the Court stated in Gravel v. United States, “[m]embers of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies. — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity.” 408 U.S. at 625, 92 S.Ct. at 2627.

. Although the Court has yet to deny legislative immunity to all public dissemination of materials developed in the course of congressional proceedings, it has held significant aspects of “the informing function of Congress,” W. Wilson, Congressional Government 303 (1885), outside of the protection of the Speech or Debate Clause. In Gravel v. United States, the Court found that private republication of documents introduced and made public at a committee hearing “was in no way essential to the deliberations of the Senate,” at least in the absence of authorization by Congress or the full committee. 408 U.S. at 625-26, 92 S.Ct. at 2627.

Doe v. McMillan goes a step further, at least three Justices holding that even congressional authorization does not serve to immunize publication and dissemination to the general public of “otherwise actionable materials going beyond the reasonable requirements of the legislative function.” 412 U.S. at 314-16 & n. 10, 93 S.Ct. at 2026. The Court did not elaborate at what point general, public dissemination transcends “legitimate legislative needs,” but apparently this turns on the extent of the publication and distribution. Id. at 324, 93 S.Ct. 2018. In a separate concurrence, Justice Douglas, joined by Justices Brennan and Marshall, felt that the “informing function” was protected by the Speech or Debate Clause, but not where exposure to the public can be said to violate the First Amendment. Id. at 327-28, 93 S.Ct. 2018. Even this view, however, denies “the absolute nature of the speech or debate protection” that has been afforded, say, issuance of subpoenas concerning a subject “on which ‘legislation could be had.’ ” See Eastland v. United States Servicemen’s Fund, 421 U.S. at 509, 95 S.Ct. at 1823, 1824 & note 77 infra.

. As previously indicated (see text at pp. 109-110 of 180 U.S.App.D.C., pp. 1285-1286 of 553 F.2d & notes 26-27 supra), there is a difference between actions taken by legislators, however frequently, and legislative activity protected by the immunity of the Speech or Debate Clause.

. The decision of the panel in this case stated that although dissemination to private individuals of unlawfully seized materials or to executive agencies of material which are known to have no reasonable relationship to the agencies’ task might be actionable, “a Congressional committee lawfully may forward to appropriate Executive agencies information which it believes relates to their legitimate functions— particularly in a case, such as this, where the agency itself requested the information.” McSurely v. McClellan, supra note 5, 172 U.S.App.D.C. at 387, 521 F.2d at 1047.

The issue before the court at this time is simply one of absolute legislative immunity. We leave open the question whether dissemination of otherwise actionable material may be privileged on some other basis.

. We caution, however, that liability, if any, must be premised on acts of actual distribution or exhibition outside of the Halls of Congress, and plaintiffs must prove their case without reference to any legislative activity, such as acts of authorization. See Doe v. McMillan, 412 U.S. at 317-18, 93 S.Ct. 2018; Gravel v. United States, 408 U.S. at 628-29, 92 S.Ct. 2614.

. In Dombrowski v. Eastland, the Speech or Debate Clause protected Senator Eastland, who was also a subcommittee chairman, but not subcommittee counsel Sourwine. The Court dismissed the complaint as to Eastland because “the record [did] not contain evidence of his involvement in any activity that could result in liability,” but permitted trial to continue as to Sourwine because “[t]here [was] controverted evidence in the record . . . which affordfed] more than merely colorable substance” to the yet unproved charge that he conspired to violate the constitutional rights of private parties. 387 U.S. at 84-85, 87 S.Ct. at 1427.

The case stands for the proposition that both a Member of Congress and his aides are equally answerable to a charge of conspiracy to violate Fourth Amendment rights, provided petitioners set forth specific facts showing a genuine issue for trial. See Note, The Scope of Immunity for Legislators and Their Employees, 77 Yale L.J. 366, 381-82 (1967). Notwithstanding some language in the opinion, see 387 U.S. at 85, 87 S.Ct. 1425, subsequent decisions of the Court make clear that the immunity available is defined by the nature of the act involved, not the status of the actor. See Gravel v. United States, 408 U.S. at 620-22, 92 S.Ct. 2614; Doe v. McMillan, 412 U.S. at 315, 317-18, 93 S.Ct. 2018; Eastland v. United States Servicemen’s Fund, 421 U.S. at 507, 95 S.Ct. 1813.

. See also United States v. Dowdy, 479 F.2d 213, 224 n. 20 (4th Cir.), cert. denied, 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973).

. Amended and Suppl.Compl. ¶¶ 11-14, App. 41-43. Since Ratliff is not a party to this appeal, we have no occasion to decide whether a state prosecutor enjoys absolute immunity in a 42 U.S.C. § 1983 suit for actions undertaken in an investigative capacity, a question left open in the Supreme Court’s recent decision in Imbler v. Pachtman, 424 U.S. 409, 430-31 & n. 32, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

. Amended and Suppl.Compl. ¶) 18, App. 43-44.

. We note that the McSurelys had stipulated in an earlier case that Subcommittee assistant counsel Duffy did not have any contact with Ratliff until their September, 1967 telephone call, more than a month after the raid, Stip. 2-3, App. 20; and there is no evidence in the record at present that Brick, or any other individual associated with the Subcommittee, traveled to Kentucky until October 8, almost two months after the raid.

If in the course of discovery on the claims that survive the legislative immunity bar evidence develops as to the complicity of the federal defendants in the original raid, plaintiffs may seek to amend their complaint, subject to the requirements of Fed.R.Civ.P. 15.

. Reinstein & Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv.L.Rev. 1113, 1154 (1973).

. Stip. 15, App. 21.

. Stip. 5, App. 20.

. An interesting parallel to the Grave] case can be found in the Duncan Sandys incident. In 1938, Sandys, an opposition member of the House of Commons, obtained and disclosed secret military documents, allegedly in violation of the Official Secrets Act, 10 & 11 Geo. 5, c. 75 (1920). Sandys sought to arouse public sentiment to remedy inadequate anti-aircraft defenses around London, a problem disclosed by the documents. A military court of inquiry subpoenaed Sandys to determine the source of the documents. This led to the appointment of a special committee of Commons, which determined that the solicitation or receipt of information in contravention of the Official Secrets Act was not privileged activity. Report for the Select Committee on the Official Secrets Act xi (London, 1939).

.See Gravel v. United States, 408 U.S. at 629-33, 92 S.Ct. 2614 (Stewart, J., dissenting in part); Reinstein & Silverglate, supra note 31, at 1155-56.

. Amended and Suppl.Compl. ¶ 19, App. 45.

. The focus here is on the illegality committed by the federal defendants, for it is their employment of means in violation of the Fourth Amendment, if any, that would bring this case within Gravel v. United States and Dombrowski v. Eastland.

. As is explained in part V infra, we do not at this juncture pass on whether the Fourth Amendment claim should be dismissed as to defendants McClellan, Adlerman and O’Donnell, even though plaintiffs have made no factual proffer of “involvement in any activity that could result in [their] liability.” Dombrowski v. Eastland, 387 U.S. at 84, 87 S.Ct. at 1427.

. “[T]he thrust of” the McSurelys’ appeal in that case was “upon the basic constitutional issue of unlawful search and seizure, not only by the Kentucky officials, but later by a United States Senate Subcommittee. It is their position that their refusal to comply with the Subcommittee subpoenas cannot support contempt convictions when the subpoenas themselves were based on an unauthorized inspection by the Subcommittee investigator of documents which had been seized by state officials in Kentucky in violation of the Fourth Amendment and under an unconstitutional statute.” United States v. McSurely, supra note 7, 154 U.S.App.D.C. at 144, 473 F.2d at 1181 (emphasis supplied). Throughout the opinion the court makes clear that the conviction must be reversed because the subpoenas “were the product of the unauthorized inspection and search of the documents by an agent of the Subcommittee itself” — the product of an independent Fourth Amendment violation by the Subcommittee through the actions of its investigators. See id. at 145-46 & n. 8, 147, 154-55, 157, 473 F.2d at 1182-83 & n. 8, 1184, 1191-92, 1194.

This was not a case of mere “derivative use” by the Subcommittee of the “forbidden fruits” of the initial illegality of Kentucky authorities. In addition to Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), which established the exclusionary rule for federal prosecutions, the McSurelys relied on Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See 154 U.S.App.D.C. at 147, 473 F.2d at 1184. In Silverthome the Court struck down a contempt conviction for refusal to comply with a grand jury subpoena for originals of documents that had been previously unlawfully seized by the Government and ordered returned by a district court. As Justice Holmes noted, “the case is not that of knowledge acquired through the wrongful act of a stranger, but it must be assumed that the Government planned or at all events ratified the whole performance.” 251 U.S. at 391, 40 S.Ct. at 182. Silverthome did not involve “knowledge of [facts] gained from an independent source [which] may be proved like any others, but [rather] knowledge gained by the Government’s own wrong [which] cannot be used by it in the way proposed.” Id. at 392, 40 S.Ct. at 183.

Judge Wilkey, concurring in the 1972 reversal of the McSurelys’ conviction, explained that “Justice Holmes properly refused to allow a subsequent regular subpoena to remove the taint on evidence which had been discovered in a previous illegal search,” because “[t]he knowledge obtained from the illegal search would have made the subpoenaed documents, in effect, their own fruit.” 154 U.S.App.D.C. at 159 & n. 3, 473 F.2d at 1196 & n. 3. Moving to the case before him, Judge Wilkey noted that “some degree of active participation by the Subcommittee’s investigator in a violation of the McSurelys’ Fourth Amendment rights, if that violation was also the sole source of the information upon which the subpoenas were issued, might justify refusal to enforce the subpoenas.” Id. at 164, 473 F.2d at 1201. However, Judge Wilkey decided to reverse the conviction on “[t]he sounder ground” of lack of pertinency of some of the subpoenaed material “to the valid subject of the legislative inquiry.” Id. at 166, 473 F.2d at 1203.

. See also 154 U.S.App.D.C. at 154, 473 F.2d at 1191.

. Judge Wilkey’s concurring opinion in United States v. McSurely notes that “although Brick’s examination of the McSurelys’ documents may be characterized as an illegal subcommittee action,” there are serious line-drawing problems in determining when active conduct ends and “passive reception of illegally seized information from others” begins. 154 U.S.App.D.C. at 165, 473 F.2d at 1202. The line to be drawn in the case before us is fairly clear. As Justice Holmes has pointed out, even the broadest, least controversial standard may well be arbitrary at the margin, yet that is no reason for refusing to recognize differences of degree and thereby giving no weight to important privacy interests. Cf. Haddock v. Haddock, 201 U.S. 562, 631-32, 26 S.Ct. 525, 50 L.Ed. 867 (1906) (Holmes, J., dissenting).

. See Stip. 1-11, App. 20-21. Ratliff testified at the McSurelys’ contempt trial that he never contacted a Member of Congress or his staff (“I was contacted, but I did not contact”). He also stated that at first he refused Brick access to the seized materials, because he had refused “other people who had wanted to see this and who were curious to see this material,” but “after [Brick] assured me — what his purpose was, he was permitted to view it.” D.A., I, 401-03.

. Reply Br. for Appellants at 5.

. Brick testified on direct that he did not “play any part at all in the selection” of the documents that Commonwealth Detective Scott delivered to him in Brick’s Pikeville motel room on October 8, 1967. D.A., II, 728. But he then went on to explain that the following morning he went to the Pike County Court House to examine the originals of the seized items, segregating out records that were of absolutely no interest to him. “I wouldn’t want to say [I examined] all [of the documents]. I would say almost all. I may have missed some of them. I did not inspect the records of a man named Joseph Malloy. They were mixed in with these. I had no interest in those.” Id. at 729. See also id. at 738-39 (on cross-examination).

On cross-examination Brick stated that when the documents were handed to him he examined what he was receiving; that he told Assistant Commonwealth Attorney Dotson and his assistant, Scott, that he did not think he needed some of the documents, but did not return the items he did not need; and that “[t]here were many others in the locked vault in the Court House” that he did not take but “would have obtained under the [first] subpoena had not the Subcommittee stopped all action when the defendants went into Court.” D.A., II, 734-36.

. “[S]earches without a warrant or probable cause may be made upon the voluntary consent of the party affected or of someone authorized by that party to control access to the places or things searched.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 358 (1974) (emphasis supplied). As to third-party consent, “when the consenting party has less than a complete proprietary or possessory interest in the searched premises, the implicated party is usually not bound by the consent.” Comment, Third Party Consent to Search and Seizure, 33 U.Chi.L.Rev. 797, 805 (1966). See, e. g., Stoner v. California, 376 U.S. 483, 488-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel clerk’s apparent authority to consent to search of guest’s room held inadequate to validate search); Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord’s consent held inadequate even though he had not only apparent authority but actual authority for some purposes to enter leased premises, e. g., “to view waste”). See also United States v. McSurely, supra note 5, 154 U.S.App.D.C. at 164 n.23, 473 F.2d at 1201 n.23 (Wilkey, J., concurring).

In connection with a disposition on the merits, there may be available to Brick a qualified defense to the damages action (not an absolute immunity from suit) of “good faith and reasonable belief in the validity of the search” — a matter on which we express no opinion. See, e. g, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972). We cannot anticipate what might be involved if such a defense is proffered. We are aware of fragments of Brick’s position as presented at the McSurelys’ contempt trial — that he believed in good faith that Ratliff had authority to show him the documents, D.A., II, 728, and learned of the court’s “safekeeping” order when he examined the court’s file on October 9, 1967, his last day in Pikeville on the first visit, id. at 737-38. Assuming good faith in his first inspection, other issues would remain — concerning his second visit; and his transporting the documents with awareness of the court’s “safekeeping” order, without the court’s permission, McSurelys’ consent, or arrangement for a committee subpoena.

. Dombrowski v. Eastland, 387 U.S. at 84, 87 S.Ct. at 1427.

. [T]he conclusion is inescapable that the criminal prosecutions were instituted, at least in part, in order to stop plaintiffs’ organizing activities in Pike County. That effort has been successful. Not only has there been the “chilling effect” on freedom of speech referred to in Dombrowski [v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)], there has been in fact a freezing effect. The Governor has issued a public statement that federal funds to the Appalachian Volunteers should be discontinued. Plaintiff’s possessions have been seized and impounded and they have been placed in jail. . . Clearly, the criminal prosecutions have put a damper on plaintiffs’ freedom of speech, as well as on others who might be in sympathy with their objectives. McSurely v. Ratliff, supra note 8, 282 F.Supp. at 852-53.

. The court, on September 11, 1967, upon the motion of the McSurelys’ counsel that the seized materials be impounded and that defendant Ratliff safeguard such material, and pursuant to the agreement of the parties, directed (1) that the materials be kept in the custody of Ratliff and the United States Marshal for the district, Archie Kraft, and that the co-custodians make an inventory of the documents; and (2) that Ratliff return to the McSurelys “such personal articles and property as he does not deem material to the investigation and prosecution herein.” Three days later, on finding KRS 432.040 facially unconstitutional and enjoining state prosecution of the McSurelys, the court issued its “safekeeping” directive. This satisfied in part the request of McSurelys’ counsel, and was responsive to the McSurelys’ privacy interests, modified only to obviate mootness.

. Ratliff testified that he “was admonished” by the court “to keep the materials [in the walk-in vault room of the Commonwealth Attorney’s office in the County Court House] and agreed to do so,” D.A., I, 404; and that before granting Brick access to the materials he made “strenuous efforts to contact one or all of the three judges,” and although he could not find Judges Combs and Gordon he “did talk to Judge Monahan,” id. at 406. Although later on in the testimony Ratliff stated in oblique fashion “I had my permission,” id. at 407, this court in United States v. McSurely, supra note 7, 154 U.S.App.D.C. at 165 n.8, 473 F.2d at 1183 n.8, found that he merely “contacted the third” judge, and “there is no evidence that Ratliff received any formal permission in the form of a court order authorizing inspection of the McSurelys’ seized property by the Subcommittee investigator.”

. Ratliff acknowledged that he did not seek the approval of the McSurelys, their counsel, or United States Marshal Kraft, co-custodian for the seized materials. D.A., I, 408.

. See discussion in section III C, infra.

. See, e. g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), discussed in note 44 supra.

. These orders issued on October 30 and December 13, 1967. Following the Supreme Court’s dismissal of the McSurelys’ appeal for want of jurisdiction, the Court of Appeals for the Sixth Circuit ordered the return of the seized materials because the time to appeal the three-judge court’s September 14, 1967 ruling had expired. The latter refused “to render an advisory opinion” on the McSurelys’ objections “concerning the validity and interpretation of the Senate Resolution and the breadth of the investigation authorized thereby,” and simply reversed the district court “without prejudice to the right of the Senate Committee to proceed with the enforcement” of its subpoenas. McSurely v. Ratliff, 398 F.2d 817, 818 (6th Cir. 1968).

. Appellants contend in their opening brief “that at every significant stage of this case the conduct of the federal defendants has been sanctioned by the courts.” Br. for Appellants at 32. They retreat somewhat from this position in their reply brief, suggesting that if the three-judge court and the Sixth Circuit failed to pass on Brick’s prior search and seizure this was due to plaintiffs’ failure to bring the matter to the courts’ attention. Reply Br. for Appellants at 10 n.9.

The McSurelys testified at their contempt trial that they first learned of Brick’s inspection and possession of 234 copies of their documents on December 5, 1967, and were not sure which documents, in particular, were made available to Brick until the 234 photocopies were returned on November 8, 1968. D.A., II, 655-56, 681-82, 704-05, 707-09. Appellees assert that “[t]he record before the Sixth Circuit included none of the facts which subsequently emerged as to what was done with Mrs. McSurely’s personal correspondence.” Br. for Appellees at 23.

The parties have not filed with this court copies of the record that was before the three-judge court and the Sixth Circuit. Thus we do not know whether the McSurelys’ objections to the Subcommittee subpoena made reference to Brick’s prior conduct. This is a matter that would benefit from further ventilation on remand.

.The opposing considerations are identified in the opinions of the panel of this court. Compare McSurely v. McClellan, supra note 5, 172 U.S.App.D.C. at 385-86, 521 F.2d at 1045-46, with 172 U.S.App.D.C. at 392-93, 521 F.2d at 1052-53 (Leventhal, J., concurring in part and dissenting in part).

. Although Calandra holds the exclusionary rule generally inapplicable to grand jury inquiry, the Court was careful to preserve intact the holding of Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Justice Powell, for the Court, noted that Silverthorne was distinguishable in part because “prior to the issuance of the grand jury subpoenas, there had been a judicial determination that the search and seizure were illegal.” 414 U.S. at 352 n.8, 94 S.Ct. at 622. That a judicial determination of illegality preceded issuance of the subpoenas in Silverthorne rendered inapplicable a major concern of the Court: the fear that allowance of pre-indictment suppression hearings would hopelessly disrupt the orderly progress of grand jury investigations. Id. at 349-50, 94 S.Ct. 613. Thus, even assuming arguendo that Calandra applies with full force to legislative inquiry, our 1972 ruling in United States v. McSurely remains good law. As we develop in note 44 supra, this court’s 1972 decision rested,- by analogy to Silverthorne, on the independent illegality committed by an investigator’s circumvention of judicial control over seized documents after a ruling that the initial seizure was made without legal justification.

. It should be noted that, even absent the exclusionary rule, a grand jury witness may have other remedies to redress the injury to his privacy and to prevent a further invasion in the future. He may be entitled to maintain a cause of action for damages against the officers who conducted the unlawful search. ... In these circumstances, we cannot say that such a witness is necessarily left remediless in the face of an unlawful search and seizure.

414 U.S. at 354-55 n.10, 94 S.Ct. at 623.

. Among the 234 items which Brick carried back to Washington were some “personal letters,” as Brick conceded to Government counsel during his testimony at the contempt trial. D.A., II, 727-28. Government counsel, Mr. Bress, acknowledged “that the list of documents, copies of which Brick had but later returned according to the record, contains confidential letters.” D.A., I, 431-32. The documents that Brick took to Washington were introduced into the record of the contempt trial as a defendants’ exhibit, and are described in D.A., II, 628-49.

Appellees focused particularly on the fact that at least one of these was a love letter to plaintiff Margaret McSurely from Drew Pearson, a prominent columnist (Document No. 201), because Brick’s testimony establishes that he not only examined the love letter in Kentucky, took it to Washington, but also singled it out to show to defendant McClellan because it was written by this prominent columnist. D.A., II, 730-31. Defendant McClellan’s affidavit acknowledges, without comment, Brick’s testimony on this point. App. 60.

. Br. for Appellees at 11, 13-15; Amended and Suppl.Compl. ¶|fl 18(b), 19, App. 44-45.

. The record contains the following exchange between the McSurelys’ counsel, Mr. Stavis, and Brick (D.A., II, 734-36):

Q (Mr. Stavis): Did you tell Mr. Dotson or any of the folk with whom you met there that there was some of that stuff that you didn’t think you needed?

A (Brick): Yes.

Q: Did you give it back to them?

A: No.

Q: Did you need that letter signed Dearest Cucumber or addressed, Dearest Cucumber? Mr. Bress (Government counsel): Objection. Irrelevant.

The Court: He may answer the question.

The Witness: No. Didn’t you say signed Dearest Cucumber and when in fact it says addressed to Dearest Cucumber.

Mr. Stavis: No, I didn’t.

The Witness: Was the question, did I need that letter?

Mr. Stavis: Yes. For the performance of your duties.

A: No, Sir.

Q: As a matter of fact, in respect to the performance of your duties, you didn’t need most of the items in that list, did you? A: Some of them.

Q: Did you — when I was asking my questions about this list of 234 items, there were lots of these items that you didn’t need at all, correct?

Mr. Bress: Objection. Irrelevant.

The Court: I believe he has already answered the question.

By Mr. Bress.

Q. What was your answer?

A. Some, yes.

Q. Some that you did?

A. It was—

Q. Lots?

A. I object to the use of the word lots. Q. A great many, a good many?

A. Oh, I will say many.

Let me explain.

I didn’t select any of these as I told you.

. Doe v. McMillan states the rule for inquiry into matters arguably relevant to legislative tasks. In Doe the Court cautioned that it had “no authority to oversee the judgment of the Committee . . . or to impose liability on its Members if we disagree with their legislative judgment.” 412 U.S. at 313, 93 S.Ct. at 2025. The Court declined to second-guess a committee’s decision to include names of specific children and descriptions of their conduct in the record of its hearings on the District of Columbia public schools and in a committee report. “The report stated that these materials were included to ‘give a realistic view’ of a troubled school and ‘the lack of administrative efforts to rectify the multitudinous problems there.’ ” Id. at 308-09, 93 S.Ct. at 2022. Since the accounts of the students’ conduct were broadly related to the subject matter of the committee’s inquiry, the Court properly refused to enmesh itself in reviewing the usefulness or necessity of the degree and type of details included in the illustrative material assembled by the committee.

Here the McSurelys make no claim that names or descriptions of arguably extraneous activities should have been deleted by Brick or the Subcommittee from documents pertinent to the Nashville disturbances. Rather they claim that material dealing with intimate subjects completely foreign to the committee’s inquiry was taken back to Washington. Of course, “the legitimacy of a congressional inquiry” is not “defined by what it produces.” Eastland v. United States Servicemen’s Fund, 421 U.S. at 509, 95 S.Ct. at 1824. But knowing retention and transportation of highly private, embarrassing papers, in the absence of a claim of conceivable legislative interest, can serve no legitimate legislative function and can have “no relation to the business before” Congress.

As previously noted (see text at p. - of 180 U.S.App.D.C., p. 1290 of 553 F.2d & note 49 supra), Brick testified at the contempt trial that he did not concern himself with items in which he had absolutely no interest. But if his interest in taking personal items was of a personal nature, whether for his benefit or for the benefit of his superiors, rather than a legislative interest, there is no legislative immunity from suit.

. Appellants suggest that Brick was merely “testifying to his ultimate conclusion that the private correspondence was unnecessary to the performance of his duties,” rather than to the determination made at the time he decided to transport the documents to Washington. Reply Br. for Appellants at 5-6 n.6.

. It has been clear since Dombrowski v. East-land, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967), that the rule that prohibits lawsuits with respect to legislative activity on mere speculative pleading does not operate to provide immunity when there has been a meaningful proffer that the conduct in question was not “essential to legislating.”

. The rule is different where Congress seeks the affirmative aid “of the Judiciary to enforce its will” in criminal prosecutions for contempt. In that context constitutional rights may be balanced against the claim of legislative privilege because the court’s performance of the judicial function requires it to scrutinize “the predicates of the criminal prosecutions.” East-land v. United States Servicemen's Fund, 421 U.S. at 509-10 n.16, 95 S.Ct. at 1825. See Tenney v. Brandhove, 341 U.S. at 378, 71 S.Ct. 783; Watkins v. United States, 354 U.S. at 216, 77 S.Ct. 1173 (Frankfurter, J., concurring).

. Citing Hearst v. Black, 66 U.S.App.D.C. 313, 87 F.2d 68 (1936), where this court refused to enjoin a congressional committee from using information obtained by having the Federal Communications Commission take possession of telegraph offices and examine wholesale private messages received and dispatched therefrom over a period of seven months. The court noted that a victim of the unlawful dragnet seizure of telegraph messages could not be held in contempt for refusing to answer questions based on the unlawfully procured information, and that an injunction could properly issue to enjoin such a trespass were it still in progress, but refused to exercise its equity power to restrain use of material physically in the possession of the committee. Id. at 316, 87 F.2d at 71.

. 123 U.S.App.D.C. at 193-95, 358 F.2d at 824-26.

. Br. for Appellees at 7; Amended and Suppl. Compl. ¶¶ 18(b), 19, App. 44-45. See note 66 supra.

. See Doe v. McMillan, 412 U.S. at 312-13, 93 S.Ct. 2018.

We are not suggesting that everything physically done within the Halls of Congress is immune to questioning. Legislative functionaries that execute a resolution authorizing an arrest, Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), or excluding a representative-elect, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), without basis in congressional power are subject to judicial inquiry. However, under Doe v. McMillan the act of dissemination of otherwise actionable material is protected activity, at least absent concession by the disseminators that material was distributed for non-legislative purposes.

. We note that Brick testified at the contempt trial that the 234 documents were maintained “by order of Senator McClellan” in Brick’s personal file under lock and key, and that the personal letter to Margaret McSurely from Drew Pearson was displayed to Senator McClellan and then placed in a sealed envelope “to be opened only by John Brick, J. S. Adams, General Counsel and Senator McClellan.” D.A., II, 729, 732-33. Defendant McClellan acknowledged this testimony in his affidavit. App. 60. In the absence of the kind of admission that was present with respect to Brick’s selection and transportation of irrelevant material back to Washington, judicial inquiry must come to a halt.

. Eastland v. United States Servicemen’s Fund, 421 U.S. at 504-07 & n. 15, 95 S.Ct. at 1822-1823.

. The subpoenas in issue are reproduced at App. 70-74. Concerning the scope of this subpoena, appellants state (Reply Br. 7-8):

[Tjhe Subcommittee subpoenas called for materials clearly relevant to its investigation, but did not call for the production of Mrs. McSurely’s letter or any other private correspondence.

8 We have never seen this letter and have had no interest in attempting to discover it. However, if plaintiffs’ contention that this letter was nothing more than a love letter, and was not relevant to any possible investigation into riots, is correct, it necessarily follows that the letter would not have been subject to production under the subpoena. And any suggestion that the subpoenas were utilized to obtain production of such private correspondence would be totally unfounded.

. The Supreme Court refused to cut back on “the absolute nature of the speech or debate protection” even in the face of allegations that First Amendment rights were being infringed by congressional action. 421 U.S. at 509-10, 95 S.Ct. at 1824.

Servicemen’s Fund involved an attempt to enjoin issuance of a subpoena duces tecum by a Senate subcommittee. We think its rationale applies to an action for damages resulting from a subpoena that has issued, as opposed to an action maintained by the Government to prosecute non-compliance with a subpoena. Compare id. at 509-10 n. 16, 95 S.Ct. 1813.

. See Dombrowski v. Burbank, 123 U.S.App. D.C. at 194, 358 F.2d at 825, where this court dismissed the claim that the subcommittee chairman and chief counsel were acting outside the scope of their authority because the records were subpoenaed without prior subcommittee authorization, although the subcommittee chairman approved in advance the action taken. We held that subsequent ratification by the full subcommittee was sufficient, given the subcommittee’s longstanding interest in the matter at issue, to preserve defendants’ immunity against liability in damages for issuing and executing the subpoena. Wheeldin v. Wheeler, 373 U.S. 647, 650-51, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963), was distinguished as a case involving service of a subpoena “which had been approved by no one, either before or after its issuance.”

. Whether another agency of the Federal Government, United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); an agent of a state Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); or a private individual acting, without any governmental encouragement, United States v. Sherwin, 539 F.2d 1 (9th Cir., 1976) (en banc).

. In Calandra, the wrong was “fully accomplished by the original search,” 414 U.S. at 354, 94 S.Ct. at 623. Here the McSurelys claim that the investigator’s conduct in violation of a court order worked a “new Fourth Amendment wrong.” It is not simply a matter of the timing of the judicial determination of illegality. The gravamen of the McSurelys’ complaint is that Brick acted in violation of the order of a court that had intervened on constitutional grounds with a ruling that entitled the McSurelys to immediate return of what had been seized, if the ruling were implemented immediately, and that accompanied a deferral of that consequence in order to avoid mootness, pending appeal to the Supreme Court, with an order restricting access to those seized materials.

Judge Wilkey (at pp. 142-144 of 180 U.S. App.D.C., pp. 1318-20 of 553 F.2d) misconstrues our discussion of Calandra, and erroneously equates Brick’s conduct with the situation in Calandra.

In Calandra the grand jury got its access to the documents before there was any judicial determination that they had been invalidly seized. The subpoena that it issued as a result of this access could not be quashed, held the Court. (Of course, the grand jury’s access was handled by the prosecutor who acted as its aide.) Likewise, in the present case, the court would not quash the subpoena issued by the subcommittee as a result of the access it got to the documents. But the person(s) who provided that access did so after a judicial determination of invalidity, and that makes the difference from Calandra in determining liability in damages. This matter of timing was identified by Justice Powell when he distinguished Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), in part because “prior to the issuance of the grand jury subpoenas, there had been a judicial determination that the search and seizure were illegal.” 414 U.S. at 352 n. 8, 94 S.Ct. at 622.

The facts show that the grand jury’s subpoena to Calandra — obviously issued before the suppression hearing of August 27, 1971, or the trial court ruling of October 1, 1971 granting Calandra’s motion to suppress- — was explicitly identified by the Court as an instance when the grand jury “subpoenaed Calandra in order to ask him questions based on the evidence seized during the search of his place of business on December 15, 1970." 414 U.S. at 341, 94 S.Ct. at 616 (emphasis added).

. Our court in 1972 may or may not have had before it the text of all the orders of the Kentucky three-judge court, but there is no doubt that it was fully aware of their thrust. This matter was adequately summarized in the Sixth Circuit decision ordering the return of the documents once the time to appeal had expired. McSurely v. Ratliff, 398 F.2d 817, 818 (6th Cir. 1968).

As to the Judge Wilkey’s attempt to dismiss this court’s earlier characterization of the scope of the “safekeeping” order as dicta, see supra n. 44, or as bad law after Calandra, see supra pp. 142-143 of 180 U.S.App.D.C., pp. 1318-19 of 553 F.2d & nn. 61 & 80.

. The October 30, 1967 order may not make specific reference to the word “subpoena,” but the motion of the McSurelys was unmistakably addressed to the subpoena that Brick had served on October 17.

. See supra pp. 116-117 of 180 U.S.App. D.C., pp. 1292-93 of 553 F.2d & n. 59. Ratliff testified he contacted one of the judges, but we do not know what in fact transpired. His oblique assertion, “1 had my permission” may be relevant to a defense of good faith on the merits, but it hardly establishes that he had approval of the court. Any failure on the McSurelys’ part to raise Brick’s activity as a ground to block compliance with a subpoena, assuming it were cognizable, would not be an absolute bar to this private action for damages from Brick’s pre-subpoena activity.

. Although the record as it stands would support a finding of Fourth Amendment violation, we are not now decreeing such a judgment. The parties have not even filed in this case copies of the record that was before the three-judge court and Sixth Circuit. The orders of the three-judge court relied on by Judge Wilkey — and which we find fall short of the claims made by him — were obtained after oral argument en banc by Judge Wilkey.

Our judgment allows opportunity for the parties to make a systematic search of the proceedings of the three-judge court and to present to the trial court proof and arguments based thereon.

. Senator McClellan’s affidavit is silent on this point. App. 60. There is no indication in the present record that legislative use was made of the letter in question. See supra n. 74.

. Congressional inquiry by various committees had been so extensive that Senator Jackson listed and identified, id., pages 22417 and 22418, some 110 witnesses whose testimony concerning problems in the area under consideration had helped to establish an awareness of the need for investigation and for possible corrective legislation.