United States v. Sisson, 399 U.S. 267 (1970)

Mr. Justice Black joins only Part IIC of this opinion. Mr. Justice BrenNAN, Mr. Justice Stewart, and Mr. Justice Marshall join the entire opinion.

Failure to set out the elements of a valid offense against the named defendant is the only way an indictment could ever be “insufficient” because of the uneonstitutionality (as opposed to the construction) of the underlying statute.

The majority, as The Chief Justice’s opinion makes clear and as I discuss in more detail later, infra, at 331-332 and n. 6, 332-334, repeatedly ignores this difference between the facts necessary to secure relief for Sisson on his constitutional claim, and the facts relevant to the offense of wilfully refusing induction.

The majority seems to recognize that it would have difficulty justifying a refusal to hear an appeal challenging Judge Wyzanski’s ruling on the Establishment Clause, simply because findings had to be made as to the defendant’s standing to raise the issue. See ante, at 284 n. 16. But there is no real difference in. this respect between Judge Wyzanski’s free exercise and establishment rulings: both— as the majority concedes, ibid. — require factual determinations that Sisson belongs to the class that is entitled to raise the constitutional claim that is being asserted. If the ruling on the first is “an acquittal,” so is the ruling on the second, since the judge might have sent the establishment issue to the jury too. See infra, at 327-328.

Consistently applied, the majority’s theory would make no criminal case appealable to this Court. For even where a judge dismisses an indictment or grants a motion in arrest because of defects “on the face of the record,” it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal. The majority’s protest that its conclusion does not rest on “what might have happened,” ante, at 290 n. 19, simply serves to highlight the ipse dixit nature of its opinion. For the plain fact is that no other reason is ever given to explain why Judge Wyzanski’s action amounted to a post-Verdict directed acquittal. The question in this case is whether an affirmative defense, relying on facts developed at trial and sustained by the trial judge after a jury verdict of guilty, can amount to an appealable “motion in bar.” It is no answer to this question simply to repeat that this is a case in which Judge Wyzanski after a verdict of guilty sustained Sisson’s defense on facts developed at the trial — a clearer case of question-begging can hardly be imagined. Such a simple restatement only poses the question that is to be decided: does such action amount to a nonappealable “acquittal” and, if so, why? One answer to this question is suggested by the majority in its citation to United States v. Ball, ante, at 289-290. An acquittal is the type of judgment that cannot be reviewed without putting the defendant twice in. jeopardy for the same offense in violation of the Constitution. Indeed, the legislative history shows that Congress was well aware of the Ball decision, and strongly suggests that Congress thought that nonappealable “acquittals” were only those in which review was incompatible with the double jeopardy provisions of the Fifth Amendment. See, e. g., 41 Cong. Rec. 2193. But despite the citation, I cannot believe that the majority really means to suggest that Congress could not constitutionally authorize an appeal in a case precisely parallel to this one in accordance with currently sought legislation. That would indeed be throwing the *329baby out with the bathwater in order to declare this case an “acquittal” and thus avoid being forced to reach the merits now. What other reason is there for deciding that this is a case of “acquittal” ? One obvious suggestion is that the question of whether a judge’s action amounts to an “acquittal” admits of no single answer, but depends on the reasons for making the inquiry in the first place. Here the inquiry is whether Congress meant to allow an appeal where a statute had been held invalid as applied to a class within its reach and where the defendant’s constitutional jeopardy interests are in no way threatened by the appeal. The majority’s absolute refusal to discuss or respond to the legislative history on this question, set out below, see infra, at 335-346, indicates that this approach would also lead to the conclusion that Judge Wyzanski granted an appealable “motion in bar” rather than an “acquittal.” The only other noncircular answer that I can find in the majority’s opinion is that this is an acquittal because the judge “might have” sent the case to the jury under his novel instructions, resulting in a verdict of not guilty,, from which an appeal would indeed jeopardize the defendant’s constitutional interests. That answer, as the majority’s discomfiture indicates, is not a very good one.

One will search the majority’s opinion in vain for an explanation as to why “motion in arrest” must be pinned to its common-law meaning, while “motion in bar” — which the majority also concedes had a unique meaning at common law, see ante, at 300 n. 53— has never been so confined. See United States v. Covington, 395 U. S. 57 (1969) (Harlan, J.); United States v. Blue, 384 U. S. 251 (1966) (Harlan, J.).

The majority concedes that the judge's instructions to the jury excluded the question of Sisson’s sincerity from the question of Sisson’s guilt under the Act. See ante, at 276. Indeed, Sisson’s sincerity could not possibly bear on whether Sisson had wilfully refused induction: since Sisson did not seek a 1-0 classification, he could not even argue his “sincerity” to show “no basis in fact” for his I-A classification. Moreover, as the majority again points out, ante, at 274 n. 2, even Sisson recognized that his “selective” objection to war foreclosed him from obtaining C. 0. status under the Act. Sisson’s sincerity was thus relevant only to his constitutional defense and was as distinct from the issue on the merits as would have been a claim that the prosecution was time barred. In that sense, the factual questions relevant to Sisson’s motion were not part of “the general issue,” I do not read The Chief Justice’s opinion, which discusses Sisson’s defense in a wholly different context, as suggesting anything different. The majority’s suggestion, ante, at 299, *333that a defense of privilege in a speech case may involve facts inextricably intertwined with the general issue, and the majority’s reference to United States v. Fargas, ante, at 301, are perfect examples of repeated refusal to come to grips with the facts of this particular case where the issues were not and could not have been intertwined. Whether Sisson might have demanded a jury trial on the facts relevant to his motion is also a question not presented here, anymore than it was in United States v. Covington, 395 U. S. 57 (1969) (Hareah, J.). The legislative history makes clear that trying facts that go to the plea, as opposed to facts that go to the “general issue” in the sense just described (whether the defendant committed the act) results in an appealable motion in bar as long as the defendant has not been “put in jeopardy.” Compare 41 Cong. Rec. 2750 (remarks of Senator Nelson), with id., at 2753 (remarks of Senator Patterson). See text, infra, at 340-341. The reason for the distinction appears to be the wholly sensible one of not permitting appeals that might involve overturning the findings of the trier of fact— whether it be judge or jury. Nobody suggests in this case that Judge Wyzanski’s findings as to Sisson’s sincerity are reviewable; the only question is whether those findings are legally relevant. While I can sympathize with the majority’s concern to distinguish Covington, I do not see the relevance of the purported distinction, see ante, at 302-303, n. 56. There, as here, the trial judge explicitly refused to declare the relevant Act unconstitutional on its face and necessarily rested his action on factual findings concerning the particular defendant, see 282 F. Supp. 886, 889-890. In fact, under the majority’s reasoning, it would have been even easier to argue in Covington that the facts needed to prove the constitutional defense were part of the “general issue,,” since proof at a trial on the merits would necessarily have involved developing such things as defendant’s status as a marihuana dealer. The majority suggests that there the Government conceded the relevant facts, whereas here they were contested. While that suggestion is itself highly dubious, see The Chief Justice’s opinion, ante, at 312, until the majority explains how that distinction is at all rele*334vant, reiterating the distinction again only begs the issue posed by this case. See n. 5, supra. For whether the issue was conceded or contested it remains true under the majority’s analysis that Cov-ington cannot be distinguished from a directed acquittal “entered on the ground that the Government did not present evidence sufficient to prove that [Covington] was [not faced with a substantial possibility of incrimination].” Majority opinion, ante, at 299.

See majority opinion, ante, at 306-307, n. 61. Of course, the legislation that the Government sought shortly after the Act was passed— requiring a defendant to raise his defenses before trial — does not necessarily mean that the then-Attorney General interpreted “jeopardy” to mean literal jeopardy. The legislation would have been equally needed to prevent defendants from waiting until “constitutional jeopardy” had attached,, before securing relief on a motion *336in bar. Indeed, it is because it was thought that “constitutional jeopardy” had attached in the Beef Trust Case (United States v. Armour & Co.), 142 F. 808 (D. C. N. D. Ill. 1906) that no appeal was thought to lie. See infra, at 341-342. Since the Beef Trust Case was the motivating force behind the Criminal Appeals Act, it would be natural for the Attorney General to seek legislation that would force a similar defendant to raise and get a decision, on his plea in bar before trial began, thus avoiding any possibility that th§ defendant would escape by being placed in legal jeopardy.

To argue that the statute was enacted for the benefit of the Department of Justice hardly justifies relying on the Government’s concession as additional authority for the proper interpretation of the Act. The relationship of the Department of Justice to the Criminal Appeals Act is not that of an agency to the statute creating the agency and charging it with enforcement of the Act’s provisions. Indeed when it comes to the question of this Court’s jurisdiction, no institution has special authority for exploring and determining that question other than this Court. The Solicitor General in this case is simply one of the litigants; to give special weight to his strategy in arguing this case at the very least does a disservice to Sisson, who — seemingly contrary to his own interests — has also made a concession: namely, that this Court does have jurisdiction under both the “motion in bar” and “motion in arrest” provisions. The views of the Justice Department on the “motion in bar” provision are entitled to precisely the same weight as the majority extends to Sisson’s views and to the Justice Department’s views on the “motion in arrest” provision.

This interpretation is reinforced at other points in the debate in a manner that also explains why the “jeopardy” language occurs in the motion-in-bar provision, and not in the other provisions. The Senators thought that indictments would normally be dismissed before trial began, so there would be no “jeopardy” problems in allowing appeals in such cases. Similarly, a motion in arrest after judgment was thought to involve no jeopardy problems, because the defendant made the motion himself in an attempt to overturn a verdict of guilty. See 41 Cong. Rec. 2753. But it was recognized that the motion in bar could be granted after trial had started, see 41 Cong. Rec. 2749; and it was not obvious whether in such a case “jeopardy” would have attached in the constitutional sense to prevent retrial. Hence, the “jeopardy” language was added “out of abundance of caution” to make clear that Congress was simply bringing that provision into line with the other provisions: i. e., appeals were to lie only where “constitutional jeopardy” had not attached; but jeopardy, not the impaneling of the jury, was to be the test of appealability in the case of the motion in bar just as in the case of the motion in arrest. See 41 Cong. Rec. 2191 (remarks of Senator Bacon); 41 Cong. Rec. 2756 (remarks of Senator Nelson) (“out of extreme *340caution and to put it exactly in harmony and in line with the provisions of the three preceding paragraphs, we have expressly provided that where the defendant has been put in jeopardy he can not be reindicted”).

The majority’s apparent willingness to accept Senator Patterson’s suggestion that the Beef Trust Case could have been appealed, ante, at 304 n. 57, virtually concedes the issue. For the whole point is that in distinguishing between the plea and the issue on the merits, the Senator was plainly giving his views as to what constitutes “legal jeopardy.”

It should be noted that even Senator Rayner’s amendment did not purport to narrow the scope of cases in which the Government could appeal; it only sought to remove any "double jeopardy” problem by declaring that the defendant should retain a favorable decision, whatever the result on appeal. On the third day of debate, the amendment was agreed to, modified to read: Senator Rayner’s earlier opponents continued to insist that no material change had been made by the amendment, since as they had argued, there would be no appeal in any event where the defendant had received a “verdict” in his favor, see opinion of The Chief Justice, ante, p. 308, as opposed to securing a favorable “judgment” by the trial court’s action in sustaining his plea or arresting judgment. See 41 Cong. Rec. 2820. Without explanation, the Conference Committee changed the amendment to read: Subsequent amendments to the Act omitted the proviso altogether (which no longer appears in the current version.) thus vindicating the arguments of Senator Rayner’s opponents that the amendment had no substantive effect.

Fed. Rule Crim. Proc. 34 provides:

United States v. Zisblatt, supra, at 742.

United States v. Lias, supra, at 687.

None of the cases relied on by the Government even hints that evidence presented at the trial can be the basis for a motion in arrest of judgment. In United States v. Green, 350 U. S. 415 (1956), there was no disagreement between the majority and dissenters on the rule that direct review is impossible if the decision below is based upon facts arising from the trial. Instead the majority and dissent simply disagreed as to whether the District Court’s decision had relied on evidence at the trial. Compare the majority opinion, 350 U. S., at 418 and 421, with the dissent, 350 U. S., at 421. In United States v. Bramblett, 348 U. S. 503 (1955), also cited by the Government, the indictment specified that the appellee had made a fraudulent claim against the Disbursing Office *283of the House of Representatives in violation of 18 U. S. C. § 1001 which forbids the willful falsification of any material statement “in any matter within the jurisdiction of any department or agency of the United States.” The District Court arrested judgment on the ground that the House Disbursing Office was not a “department or agency” for purposes of the statute, and on appeal this Court reversed. Neither the District Court nor this Court relied in any way upon the evidence submitted at the trial in determining the scope of the statutory phrase “department or agency” found in 18 U. S. C. § 1001. Finally, the Government refers to United States v. Waters, 84 U. S. App. D. C. 127, 175 F. 2d 340 (1948). In that case the District Court held an indictment did not charge an offense because it alleged only that the appellee was carrying a gun, and not that he was carrying a gun without a license. However, the District Court called its opinion the grant of a motion of acquittal. The United States appealed to the Court of Appeals which held that the decision was a motion in arrest, stating that the “question of appealability” turned not on “the name the [district] court gave [the decision] but by what in legal effect it actually was,” The Court of Appeals then certified the case to this Court, since it felt the motion in arrest involved an “interpretation” of the underlying statute, but the appeal was dismissed on the motion of the United States, 335 U. S. 869 (1948).

The factual determinations would also appear essential for the District Court’s alternative ground of decision based on the Establishment Clause. That holding rests necessarily upon the finding that Sisson, though nonreligious, "was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.” Without this finding, Sisson would have no standing to assert the underinclusiveness of § 6 (j) of the Act as a defense to his prosecution. Whether factual determinations made only for purposes of deciding questions of standing, particularly if made before trial, would offend the requirements that motions in arrest must be based on errors on the face of the record is an issue inappropriate for decision in this case. Because of our determination that the District Court’s free exercise holding was in effect an acquittal, there is no need to decide whether the alternative Establishment Clause ruling would be appealable if it stood alone.

Compare 50 U. S. C. App. §462 (a) (1964 ed., Supp. IV) with the allegations of the indictment:

This principle would dictate that after this jurisdictional dismissal, Sisson may not be retried.

Our conclusion does not, as suggested in dissent, post, at 327 (dissenting opinion of Mr. Justice White),, rest on the fact the District Court “might have” sent the case to the jury on the instruction referred to in the text, but instead on what it did do— i. e., render a legal determination on the basis of facts adduced at the trial relating to the general issue of the case, see, infra, at 301. Neither dissenting opinion explains what “large and critical” difference, post, at 329, exists between its expansive notion of what constitutes a decision arresting judgment and a post-verdict acquittal entered by the judge after the jury has returned a verdict of guilty pursuant to Fed. Rule Crim. Proc. 29. We think untenable the view of Mr. Justice White that under the principles of this opinion today the “Court should not have had jurisdiction in United States v. Covington,” 395 U. S. 57 (1969), *291on the ground that the pretrial dismissal in that case “would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant’s privilege — e. g., that he was not one of the registered marihuana dealers whose conduct was legal under state law,” post, at 327 (emphasis in original). As we note, infra, n. 56, what the District Court did do in Covington was to dismiss an indictment before trial without any evidentiary hearing. Moreover, in disposing of the Government’s contentions on the merits, this Court held that there was no need in that case for a pretrial evidentiary hearing on the defendant’s motion to dismiss (much less a need to submit any factual issue to a jury) because (1) “there is no possibility of any factual dispute with regard to the hazard of incrimination”; and (2) “the Government [had] never alleged the existence of a factual controversy” concerning appellee’s nonwaiver of his privilege against self-incrimination, 395 U. S., at 61.

The statute provides, in pertinent part: The statute goes on to provide for (1) Government appeals to the courts of appeals for all other decisions (a) setting aside or dismissing indictments, or (b) arresting judgments; (e) granting a pretrial suppression motion; (2) release on bail; (3) transfer of cases from this Court to a court of appeals or vice versa when an appeal has erroneously been taken to the wrong court.

34 Stat. 1246 provided in pertinent part:

Between 1907 and the present day, Congress has amended the Act several times. These include a 1948 amendment that brought *293the procedural vocabulary of the statute into formal conformity with the Federal Rules of Criminal Procedure, 62 Stat. 844. Although “special plea in bar” thus became “motion in bar,” and “decision . . . quashing ... or sustaining a demurrer to, any indictment” became “decision . . . dismissing any indictment,” the Reviser’s Notes plainly show that this amendment was not meant to change the Act’s coverage, H. R. Rep. No. 304, 80th Cong., 1st Sess., A177; see United States v. Apex Distributing Co., 270 F. 2d 747, 755 (C. A. 9th Cir. 1959). A 1942 amendment did increase this Court’s jurisdiction under the Act by including cases involving informations as well as indictments, 56 Stat. 271. Other amendments have (1) abolished review by writ of error and substituted the right of appeal, 45 Stat. 54 (1928); (2) given the courts of appeals jurisdiction for appeals from decisions in the same common-law categories as those originally provided, but which do not involve the construction or validity of the underlying statute, 56 Stat. 271.

See the Attorney General’s Annual Reports for 1892, pp. xxiv-xxv; for 1893, p. xxvi; for 1894, p. xxix; for 1899, p. 33; for 1900, p. 40; for 1903, p. vi; for 1905, p. 10; for 1906, p. 4. See generally Kurland, The Mersky Case and the Criminal Appeals Act: A Suggestion for Amendment of the Statute, 28 U. Chi. L. Rev. 419, 446-449 (1961); F. Frankfurter & J. Landis, The Business of the Supreme Court 114-117 (1928).

1892 Rep. Atty. Gen. xxiv.

United States v. Armour & Co., 142 F. 808 (D. C. N. D. Ill. 1906).

See Frankfurter & Landis, supra, n. 23, at 117; Kurland, supra, n. 23, at 449.

41 Cong. Rec. 22.

Kurland, supra, n. 23, at 450.

40 Cong. Rec. 5408.

The text of the House bill appears at 40 Cong. Rec. 5408. It gave the United States the same right of review by writ of error as was then accorded a criminal defendant, but further provided that if on appeal any error were found, the defendant should retain the advantage of any verdict in his favor. With neither debate nor a division, the bill passed the House on April 17, 1906. Ibid.

See S. Rep. No. 3922, 59th Cong., 1st Sess. (1906).

See 40 Cong. Rec. 9033.

Id., at 9122.

41 Cong. Rec. 1865; S. Rep. No. 5650, 59th Cong., 2d Sess. (1907).

41 Cong. Rec. 2190-2197; 2744r-2763; 2818-2825.

Id., at 2194.

Id., at 2195-2197.

See id., at 2749-2762.

See id., at 2819.

See id., at 2752.

When asked whether the substance of his amendment was that there was to be no appeal and retrial after the defendant had been *296“acquitted by the verdict of a jury,” the sponsor of the amendment, Senator Rayner, stated: “I have in the amendment no such words as 'acquitted by the jury.’ I have nothing to do with the jury. He may be acquitted by a magistrate .... I do not care by what tribunal he is acquitted ...” Id,., at 2749.

See infra, at 302-307.

See 41 Cong. Rec., at 2822, 2823.

Id., at 2834.

Id., at 3044-3047.

Id., at 3647.

See H. R. Rep. No. 8113, 59th Cong., 2d Sess.

41 Cong. Rec. 3994, 4128.

It appears that the dissenters have not only “outgrown” the statutory limitations of a “decision arresting a judgment” for purposes of § 3731, but also the limitations of Rule 34.

Professor Kurland characterized the statute as “a compromise among several divergent forces. The division in the Senate was primarily between those who wanted limited review and those who wanted none. The division between the House and Senate was between those who wanted complete review and those who wanted limited review.” Kurland, supra, n. 23, at 454.

See, e. g., 1907 Rep. Atty. Gen. 4. See infra, at 306.

See 396 U. S. 812 (1969).

At common law, a special plea in bar was ordinarily used to raise three defenses — autrefois acquit, autrefois convict, and pardon— and there is language in some of our cases that indicates that, apart from these defenses, a plea in bar was not appropriate “to single out for determination in advance of trial matters of defense either on questions of law or fact,” United States v. Murdock, 284 U. S. 141, 151 (1931). There are cases consistent with the narrow common-law definition that indicate, for example, that a defense based upon the statute of limitations could not be raised by a “special plea in bar,” United States v. Kissel, 218 U. S. 601, 610 (1910); United States v. Barber, 219 U. S. 72, 78-79 (1911). On the other hand, it appears the Court accepted jurisdiction under § 3731, in appeals from decisions granting special pleas in bar based on a statute of limitations defense, with no explanation of the apparent inconsistency. See United States v. Goldman, 277 U. S. 229, 236-237 (1928); see also United States v. Rabinowich, 238 U. S. 78 (1915). And, in United States v. Mersky, 361 U. S. 431 (1960), there was no decision of the Court on what was a motion in bar, and the concurring opinion of Mr. Justice Brennan and the dissenting opinion of Mr. Justice Stewart indicated disagreement on this issue. Compare 361 U. S., at 441-443 with id., at 455-458. To add to the uncertainty, arguably in United States v. Murdock, supra, and certainly in United States v. Blue, 384 U. S. 251, 253-254 (1966), and United States v. Covington, 395 U. S. 57, 59 n. 2 (1969), the Court took jurisdiction and considered the merits of appeals from district court dismissals based on self-incrimination defenses on the ground that the decisions below had sustained motions in bar for purposes of the Criminal Appeals Act — even though Mur-dock itself stated that this defense is not appropriately raised by a special plea in bar. 284 U. S., at 151.

In United States v. Mersky, 361 U. S. 431 (1960), there was no decision of the Court concerning what approach should be taken. Mr. Justice Brennan suggested that the category include any decision that barred reprosecution if upheld, id., at 441-443, while Mr. Justice Stewart thought the provision should be confined to those decisions that would fall within the compass of the common law “special plea in bar,” id., at 455-458. See generally Kurland, supra, n. 23.

The dismissal provision of Fed. Rule Crim. Proc. 12, which Mr. Justice Brennan in his Mersky concurrence saw as having “swept away the old pleas,” 361 U. S., at 442, itself limits a dismissal to those defenses “capable of determination without the trial of the general issue,” Fed. Rule Crim. Proc. 12 (b)(1).

Nowhere does United States v. Covington, su-pra, suggest, as argued in dissent, that there might be jurisdiction under the motion-in-bar provision of § 3731 in circumstances where the parties “tr[ied] facts to the judge that were relevant to the motion, in bar, and separate from the general issue,” post, at 332 (dissenting opinion of Me. Justice White). Our Brother White reaches this conclusion by taking a quotation from Covington out of context, and confusing that opinion’s disposition of the merits of the Government’s appeal with the Court’s jurisdictional holding. In Covington, the District Court, before trial without any eviden-tiary hearing, dismissed an indictment bottomed on the Marihuana Tax Act, 26 U. S. C. § 4744 (a) (1), on the ground that the “privilege against self-incrimination necessarily would provide a complete defense to the prosecution,” id., at 58. The Government appealed, claiming the Court had jurisdiction under both the dismissal and the motion-in-bar provisions of § 3731. The Court found jurisdiction in the alternative under either provision. The only discussion of the motion-in-bar jurisdictional issue, found in a footnote, was as follows: “If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one 'sustaining a motion in bar.’ See United States v. Murdock, 284 U. S. 141 (1931),” 395 U. S., at 59 n. 2. Having thus disposed of the jurisdictional issue, the Court proceeded to the merits of the Government’s appeal and, inter alia, considered “whether such a plea of the privilege [against self-incrimination] may ever justify dismissal of an indictment, and if so whether this is such an instance,” id., at 60. In this context the Court said: Taken in full context, the quotation used by MR. Justice White, post, at 332, plainly had reference to a district court’s power under Fed. Rule Crim. Proc. 12 to dismiss an indictment, and nothing whatsoever to do with the quite distinct issue of the scope of the jurisdictional provisions of § 3731. That the Court was there concerned with only the merits of appeal is clear from what follows. After suggesting that in most circumstances a motion to dismiss an indictment brought under 26 U. S. C. § 4744 would not require any factual inquiry, the Court stated that once a defendant asserted his privilege a trial court should dismiss the indictment without an evidentiary hearing “unless the Government can rebut the presumption [of nonwaiver of the privilege] by showing a need for further factual inquiries.” Id., at 61. In applying that principle to the merits of the case before it, the Court affirmed the District Court’s action below because: (1) “there [was] no possibility of any factual dispute with regard to the hazard of incrimination”; and (2) “the Government has never alleged the existence of a factual controversy” concerning the issue of whether “appellee [had] waived his privilege.” Ibid. The Court in Covington did not say that a defense based on the privilege against self-incrimination where there were facts in dispute could, in all cases, be decided without consideration of the general issue. And, more importantly for present purposes, nowhere does the opinion in Covington even hint that a dismissal requiring a pretrial evidentiary hearing, or a dismissal motion properly deferred to the trial of the general issue would be appealable under the motion-in-bar provision of the Criminal Appeals Act. The Court in Cov-ington had no such jurisdictional issues before it, and the opinion does not discuss such issues.

See 40 Cong. Rec. 9033. In this exchange, Senator Spooner said: “I understand this [bill] applies only to questions which arise before the impaneling of the jury.” Senator Nelson agreed that the bill was so limited, and obviously thinking he was saying the same thing, said the bill applied only “[w]here the party has not been put in jeopardy.” After being reminded of the arrest-of-judgment provision, Senator Nelson acknowledged that this was an exception, but obviously trying to minimize the scope of the exception he pointed out that the only motions in arrest of judgment that could be appealed were those granted “for insufficiency of indictment; not for any other ground.” Ibid. See 41 Cong. Rec. 2191 (Sen. Nelson) (“I wish to say further that where a jury has been impaneled and where the defendant has been tried an appeal does not lie”), id., at 2748 (Sen. Patterson) (“[A] motion in arrest of judgment ... is the only one of the three cases in which there can have been a trial .... [I]n the other two cases . . . the motions must ex necessitati be made before jeopardy attaches”); id., at 2752 (Sen. Patterson) (“These proceedings are all defendant’s acts before a verdict to prevent a trial, except the motion in arrest of judgment, which is defendant's act after a verdict against him to defeat a judgment on the verdict”) (emphasis supplied). Without explaining his inconsistency, Senator Patterson later expressed the view that under the proposed bill the Government would have been able to appeal the decision in the famed Chicago Beef Trust Case because the jury’s verdict was based on the “special plea in bar filed” in that case, not on the defendants’ guilt or innocence, id., at 2753. Underlying this conclusion — later disputed by Senator Nelson, see id., at 2757- — was Patterson’s expectation that “in the case of a special plea in bar that went against the Government the defendant had not been in jeopardy on the merits of the case," id., at 2753 (emphasis supplied). Unlike the defendants in the Beef *305 Trust Case — who Patterson understood not to have been tried on the general issue of their guilt or innocence — plainly Sisson has been put “in jeopardy on the merits of the case.” Our Brother White admits as much, by suggesting he could not be retried. Therefore, even under Patterson’s broader reading of the statute, an appeal would not lie in this case.

See, e. g., 41 Cong. Rec. 2745-2763.

See, e. g., 40 Cong. Rec. 9033; 41 Cong. Rec. 2192; id., at 2751.

See 41 Cong. Rec. 2751 (Sen. Knox) (“[I]f I thought there was a single line, or a sentence, or a clause contained in this bill which by any court would be construed to place a man twice in jeopardy, I would vote to cut it out, not because there would be any necessity for cutting it out, as it would be invalid under the Constitution of the United States, but I would vote to cut it out upon the ground that it would not be an artistic and intelligent bill with such a provision within its borders.”) The provision granting an appeal from a decision dismissing or setting aside an indictment does not contain a similar phrase limiting appeals to cases where the defendant has not yet been put in jeopardy, but we agree with the conclusion reached by the Government that the same limitation applies. See n. 57, supra.

Brief 19. It should be noted that at the Government’s request a proposed amendment to § 3731 has been introduced in *307Congress to remove this limitation. The proposed statute, which avoids common-law terminology, would allow an appeal from a decision made after the jury was sworn in all cases where the Double Jeopardy Clause would permit it. See H. R. 14588, 91st Cong., 1st Sess., 115 Cong. Rec. H10274 (daily ed. Oct. 29, 1969).

See 1907 Rep. Atty. Gen. 4; see also Hearing on Granting Appeals by the United States from Decisions Sustaining Motions to Suppress Evidence, before Subcommittee No. 2 of the House Committee on the Judiciary, 83 Cong., 2d Sess., ser. 15, p. 11 (1954).

Motions in bar, for example, can only be appealed to this Court irrespective of whether the ease involves the validity or construction of a statute.

See supra, nn. 53-54.

See, e. g., United States v. Zisblatt, supra; United States v. Brodson, 234 F. 2d 97 (C. A. 7th Cir. 1956). See generally Friedenthal, supra, n. 9, at 83-88.

Tr. of Oral Arg. 11.

Failure to set out the elements of a valid offense against the named defendant is the only way an indictment could ever be “insufficient” because of the uneonstitutionality (as opposed to the construction) of the underlying statute.

The majority, as The Chief Justice’s opinion makes clear and as I discuss in more detail later, infra, at 331-332 and n. 6, 332-334, repeatedly ignores this difference between the facts necessary to secure relief for Sisson on his constitutional claim, and the facts relevant to the offense of wilfully refusing induction.

The majority seems to recognize that it would have difficulty justifying a refusal to hear an appeal challenging Judge Wyzanski’s ruling on the Establishment Clause, simply because findings had to be made as to the defendant’s standing to raise the issue. See ante, at 284 n. 16. But there is no real difference in. this respect between Judge Wyzanski’s free exercise and establishment rulings: both— as the majority concedes, ibid. — require factual determinations that Sisson belongs to the class that is entitled to raise the constitutional claim that is being asserted. If the ruling on the first is “an acquittal,” so is the ruling on the second, since the judge might have sent the establishment issue to the jury too. See infra, at 327-328.

Consistently applied, the majority’s theory would make no criminal case appealable to this Court. For even where a judge dismisses an indictment or grants a motion in arrest because of defects “on the face of the record,” it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal. The majority’s protest that its conclusion does not rest on “what might have happened,” ante, at 290 n. 19, simply serves to highlight the ipse dixit nature of its opinion. For the plain fact is that no other reason is ever given to explain why Judge Wyzanski’s action amounted to a post-Verdict directed acquittal. The question in this case is whether an affirmative defense, relying on facts developed at trial and sustained by the trial judge after a jury verdict of guilty, can amount to an appealable “motion in bar.” It is no answer to this question simply to repeat that this is a case in which Judge Wyzanski after a verdict of guilty sustained Sisson’s defense on facts developed at the trial — a clearer case of question-begging can hardly be imagined. Such a simple restatement only poses the question that is to be decided: does such action amount to a nonappealable “acquittal” and, if so, why? One answer to this question is suggested by the majority in its citation to United States v. Ball, ante, at 289-290. An acquittal is the type of judgment that cannot be reviewed without putting the defendant twice in. jeopardy for the same offense in violation of the Constitution. Indeed, the legislative history shows that Congress was well aware of the Ball decision, and strongly suggests that Congress thought that nonappealable “acquittals” were only those in which review was incompatible with the double jeopardy provisions of the Fifth Amendment. See, e. g., 41 Cong. Rec. 2193. But despite the citation, I cannot believe that the majority really means to suggest that Congress could not constitutionally authorize an appeal in a case precisely parallel to this one in accordance with currently sought legislation. That would indeed be throwing the *329baby out with the bathwater in order to declare this case an “acquittal” and thus avoid being forced to reach the merits now. What other reason is there for deciding that this is a case of “acquittal” ? One obvious suggestion is that the question of whether a judge’s action amounts to an “acquittal” admits of no single answer, but depends on the reasons for making the inquiry in the first place. Here the inquiry is whether Congress meant to allow an appeal where a statute had been held invalid as applied to a class within its reach and where the defendant’s constitutional jeopardy interests are in no way threatened by the appeal. The majority’s absolute refusal to discuss or respond to the legislative history on this question, set out below, see infra, at 335-346, indicates that this approach would also lead to the conclusion that Judge Wyzanski granted an appealable “motion in bar” rather than an “acquittal.” The only other noncircular answer that I can find in the majority’s opinion is that this is an acquittal because the judge “might have” sent the case to the jury under his novel instructions, resulting in a verdict of not guilty,, from which an appeal would indeed jeopardize the defendant’s constitutional interests. That answer, as the majority’s discomfiture indicates, is not a very good one.

One will search the majority’s opinion in vain for an explanation as to why “motion in arrest” must be pinned to its common-law meaning, while “motion in bar” — which the majority also concedes had a unique meaning at common law, see ante, at 300 n. 53— has never been so confined. See United States v. Covington, 395 U. S. 57 (1969) (Harlan, J.); United States v. Blue, 384 U. S. 251 (1966) (Harlan, J.).

The majority concedes that the judge's instructions to the jury excluded the question of Sisson’s sincerity from the question of Sisson’s guilt under the Act. See ante, at 276. Indeed, Sisson’s sincerity could not possibly bear on whether Sisson had wilfully refused induction: since Sisson did not seek a 1-0 classification, he could not even argue his “sincerity” to show “no basis in fact” for his I-A classification. Moreover, as the majority again points out, ante, at 274 n. 2, even Sisson recognized that his “selective” objection to war foreclosed him from obtaining C. 0. status under the Act. Sisson’s sincerity was thus relevant only to his constitutional defense and was as distinct from the issue on the merits as would have been a claim that the prosecution was time barred. In that sense, the factual questions relevant to Sisson’s motion were not part of “the general issue,” I do not read The Chief Justice’s opinion, which discusses Sisson’s defense in a wholly different context, as suggesting anything different. The majority’s suggestion, ante, at 299, *333that a defense of privilege in a speech case may involve facts inextricably intertwined with the general issue, and the majority’s reference to United States v. Fargas, ante, at 301, are perfect examples of repeated refusal to come to grips with the facts of this particular case where the issues were not and could not have been intertwined. Whether Sisson might have demanded a jury trial on the facts relevant to his motion is also a question not presented here, anymore than it was in United States v. Covington, 395 U. S. 57 (1969) (Hareah, J.). The legislative history makes clear that trying facts that go to the plea, as opposed to facts that go to the “general issue” in the sense just described (whether the defendant committed the act) results in an appealable motion in bar as long as the defendant has not been “put in jeopardy.” Compare 41 Cong. Rec. 2750 (remarks of Senator Nelson), with id., at 2753 (remarks of Senator Patterson). See text, infra, at 340-341. The reason for the distinction appears to be the wholly sensible one of not permitting appeals that might involve overturning the findings of the trier of fact— whether it be judge or jury. Nobody suggests in this case that Judge Wyzanski’s findings as to Sisson’s sincerity are reviewable; the only question is whether those findings are legally relevant. While I can sympathize with the majority’s concern to distinguish Covington, I do not see the relevance of the purported distinction, see ante, at 302-303, n. 56. There, as here, the trial judge explicitly refused to declare the relevant Act unconstitutional on its face and necessarily rested his action on factual findings concerning the particular defendant, see 282 F. Supp. 886, 889-890. In fact, under the majority’s reasoning, it would have been even easier to argue in Covington that the facts needed to prove the constitutional defense were part of the “general issue,,” since proof at a trial on the merits would necessarily have involved developing such things as defendant’s status as a marihuana dealer. The majority suggests that there the Government conceded the relevant facts, whereas here they were contested. While that suggestion is itself highly dubious, see The Chief Justice’s opinion, ante, at 312, until the majority explains how that distinction is at all rele*334vant, reiterating the distinction again only begs the issue posed by this case. See n. 5, supra. For whether the issue was conceded or contested it remains true under the majority’s analysis that Cov-ington cannot be distinguished from a directed acquittal “entered on the ground that the Government did not present evidence sufficient to prove that [Covington] was [not faced with a substantial possibility of incrimination].” Majority opinion, ante, at 299.

See majority opinion, ante, at 306-307, n. 61. Of course, the legislation that the Government sought shortly after the Act was passed— requiring a defendant to raise his defenses before trial — does not necessarily mean that the then-Attorney General interpreted “jeopardy” to mean literal jeopardy. The legislation would have been equally needed to prevent defendants from waiting until “constitutional jeopardy” had attached,, before securing relief on a motion *336in bar. Indeed, it is because it was thought that “constitutional jeopardy” had attached in the Beef Trust Case (United States v. Armour & Co.), 142 F. 808 (D. C. N. D. Ill. 1906) that no appeal was thought to lie. See infra, at 341-342. Since the Beef Trust Case was the motivating force behind the Criminal Appeals Act, it would be natural for the Attorney General to seek legislation that would force a similar defendant to raise and get a decision, on his plea in bar before trial began, thus avoiding any possibility that th§ defendant would escape by being placed in legal jeopardy.

To argue that the statute was enacted for the benefit of the Department of Justice hardly justifies relying on the Government’s concession as additional authority for the proper interpretation of the Act. The relationship of the Department of Justice to the Criminal Appeals Act is not that of an agency to the statute creating the agency and charging it with enforcement of the Act’s provisions. Indeed when it comes to the question of this Court’s jurisdiction, no institution has special authority for exploring and determining that question other than this Court. The Solicitor General in this case is simply one of the litigants; to give special weight to his strategy in arguing this case at the very least does a disservice to Sisson, who — seemingly contrary to his own interests — has also made a concession: namely, that this Court does have jurisdiction under both the “motion in bar” and “motion in arrest” provisions. The views of the Justice Department on the “motion in bar” provision are entitled to precisely the same weight as the majority extends to Sisson’s views and to the Justice Department’s views on the “motion in arrest” provision.

This interpretation is reinforced at other points in the debate in a manner that also explains why the “jeopardy” language occurs in the motion-in-bar provision, and not in the other provisions. The Senators thought that indictments would normally be dismissed before trial began, so there would be no “jeopardy” problems in allowing appeals in such cases. Similarly, a motion in arrest after judgment was thought to involve no jeopardy problems, because the defendant made the motion himself in an attempt to overturn a verdict of guilty. See 41 Cong. Rec. 2753. But it was recognized that the motion in bar could be granted after trial had started, see 41 Cong. Rec. 2749; and it was not obvious whether in such a case “jeopardy” would have attached in the constitutional sense to prevent retrial. Hence, the “jeopardy” language was added “out of abundance of caution” to make clear that Congress was simply bringing that provision into line with the other provisions: i. e., appeals were to lie only where “constitutional jeopardy” had not attached; but jeopardy, not the impaneling of the jury, was to be the test of appealability in the case of the motion in bar just as in the case of the motion in arrest. See 41 Cong. Rec. 2191 (remarks of Senator Bacon); 41 Cong. Rec. 2756 (remarks of Senator Nelson) (“out of extreme *340caution and to put it exactly in harmony and in line with the provisions of the three preceding paragraphs, we have expressly provided that where the defendant has been put in jeopardy he can not be reindicted”).

The majority’s apparent willingness to accept Senator Patterson’s suggestion that the Beef Trust Case could have been appealed, ante, at 304 n. 57, virtually concedes the issue. For the whole point is that in distinguishing between the plea and the issue on the merits, the Senator was plainly giving his views as to what constitutes “legal jeopardy.”

Failure to set out the elements of a valid offense against the named defendant is the only way an indictment could ever be “insufficient” because of the uneonstitutionality (as opposed to the construction) of the underlying statute.

The majority, as The Chief Justice’s opinion makes clear and as I discuss in more detail later, infra, at 331-332 and n. 6, 332-334, repeatedly ignores this difference between the facts necessary to secure relief for Sisson on his constitutional claim, and the facts relevant to the offense of wilfully refusing induction.

The majority seems to recognize that it would have difficulty justifying a refusal to hear an appeal challenging Judge Wyzanski’s ruling on the Establishment Clause, simply because findings had to be made as to the defendant’s standing to raise the issue. See ante, at 284 n. 16. But there is no real difference in. this respect between Judge Wyzanski’s free exercise and establishment rulings: both— as the majority concedes, ibid. — require factual determinations that Sisson belongs to the class that is entitled to raise the constitutional claim that is being asserted. If the ruling on the first is “an acquittal,” so is the ruling on the second, since the judge might have sent the establishment issue to the jury too. See infra, at 327-328.

Consistently applied, the majority’s theory would make no criminal case appealable to this Court. For even where a judge dismisses an indictment or grants a motion in arrest because of defects “on the face of the record,” it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal. The majority’s protest that its conclusion does not rest on “what might have happened,” ante, at 290 n. 19, simply serves to highlight the ipse dixit nature of its opinion. For the plain fact is that no other reason is ever given to explain why Judge Wyzanski’s action amounted to a post-Verdict directed acquittal. The question in this case is whether an affirmative defense, relying on facts developed at trial and sustained by the trial judge after a jury verdict of guilty, can amount to an appealable “motion in bar.” It is no answer to this question simply to repeat that this is a case in which Judge Wyzanski after a verdict of guilty sustained Sisson’s defense on facts developed at the trial — a clearer case of question-begging can hardly be imagined. Such a simple restatement only poses the question that is to be decided: does such action amount to a nonappealable “acquittal” and, if so, why? One answer to this question is suggested by the majority in its citation to United States v. Ball, ante, at 289-290. An acquittal is the type of judgment that cannot be reviewed without putting the defendant twice in. jeopardy for the same offense in violation of the Constitution. Indeed, the legislative history shows that Congress was well aware of the Ball decision, and strongly suggests that Congress thought that nonappealable “acquittals” were only those in which review was incompatible with the double jeopardy provisions of the Fifth Amendment. See, e. g., 41 Cong. Rec. 2193. But despite the citation, I cannot believe that the majority really means to suggest that Congress could not constitutionally authorize an appeal in a case precisely parallel to this one in accordance with currently sought legislation. That would indeed be throwing the *329baby out with the bathwater in order to declare this case an “acquittal” and thus avoid being forced to reach the merits now. What other reason is there for deciding that this is a case of “acquittal” ? One obvious suggestion is that the question of whether a judge’s action amounts to an “acquittal” admits of no single answer, but depends on the reasons for making the inquiry in the first place. Here the inquiry is whether Congress meant to allow an appeal where a statute had been held invalid as applied to a class within its reach and where the defendant’s constitutional jeopardy interests are in no way threatened by the appeal. The majority’s absolute refusal to discuss or respond to the legislative history on this question, set out below, see infra, at 335-346, indicates that this approach would also lead to the conclusion that Judge Wyzanski granted an appealable “motion in bar” rather than an “acquittal.” The only other noncircular answer that I can find in the majority’s opinion is that this is an acquittal because the judge “might have” sent the case to the jury under his novel instructions, resulting in a verdict of not guilty,, from which an appeal would indeed jeopardize the defendant’s constitutional interests. That answer, as the majority’s discomfiture indicates, is not a very good one.

One will search the majority’s opinion in vain for an explanation as to why “motion in arrest” must be pinned to its common-law meaning, while “motion in bar” — which the majority also concedes had a unique meaning at common law, see ante, at 300 n. 53— has never been so confined. See United States v. Covington, 395 U. S. 57 (1969) (Harlan, J.); United States v. Blue, 384 U. S. 251 (1966) (Harlan, J.).

The majority concedes that the judge's instructions to the jury excluded the question of Sisson’s sincerity from the question of Sisson’s guilt under the Act. See ante, at 276. Indeed, Sisson’s sincerity could not possibly bear on whether Sisson had wilfully refused induction: since Sisson did not seek a 1-0 classification, he could not even argue his “sincerity” to show “no basis in fact” for his I-A classification. Moreover, as the majority again points out, ante, at 274 n. 2, even Sisson recognized that his “selective” objection to war foreclosed him from obtaining C. 0. status under the Act. Sisson’s sincerity was thus relevant only to his constitutional defense and was as distinct from the issue on the merits as would have been a claim that the prosecution was time barred. In that sense, the factual questions relevant to Sisson’s motion were not part of “the general issue,” I do not read The Chief Justice’s opinion, which discusses Sisson’s defense in a wholly different context, as suggesting anything different. The majority’s suggestion, ante, at 299, *333that a defense of privilege in a speech case may involve facts inextricably intertwined with the general issue, and the majority’s reference to United States v. Fargas, ante, at 301, are perfect examples of repeated refusal to come to grips with the facts of this particular case where the issues were not and could not have been intertwined. Whether Sisson might have demanded a jury trial on the facts relevant to his motion is also a question not presented here, anymore than it was in United States v. Covington, 395 U. S. 57 (1969) (Hareah, J.). The legislative history makes clear that trying facts that go to the plea, as opposed to facts that go to the “general issue” in the sense just described (whether the defendant committed the act) results in an appealable motion in bar as long as the defendant has not been “put in jeopardy.” Compare 41 Cong. Rec. 2750 (remarks of Senator Nelson), with id., at 2753 (remarks of Senator Patterson). See text, infra, at 340-341. The reason for the distinction appears to be the wholly sensible one of not permitting appeals that might involve overturning the findings of the trier of fact— whether it be judge or jury. Nobody suggests in this case that Judge Wyzanski’s findings as to Sisson’s sincerity are reviewable; the only question is whether those findings are legally relevant. While I can sympathize with the majority’s concern to distinguish Covington, I do not see the relevance of the purported distinction, see ante, at 302-303, n. 56. There, as here, the trial judge explicitly refused to declare the relevant Act unconstitutional on its face and necessarily rested his action on factual findings concerning the particular defendant, see 282 F. Supp. 886, 889-890. In fact, under the majority’s reasoning, it would have been even easier to argue in Covington that the facts needed to prove the constitutional defense were part of the “general issue,,” since proof at a trial on the merits would necessarily have involved developing such things as defendant’s status as a marihuana dealer. The majority suggests that there the Government conceded the relevant facts, whereas here they were contested. While that suggestion is itself highly dubious, see The Chief Justice’s opinion, ante, at 312, until the majority explains how that distinction is at all rele*334vant, reiterating the distinction again only begs the issue posed by this case. See n. 5, supra. For whether the issue was conceded or contested it remains true under the majority’s analysis that Cov-ington cannot be distinguished from a directed acquittal “entered on the ground that the Government did not present evidence sufficient to prove that [Covington] was [not faced with a substantial possibility of incrimination].” Majority opinion, ante, at 299.

See majority opinion, ante, at 306-307, n. 61. Of course, the legislation that the Government sought shortly after the Act was passed— requiring a defendant to raise his defenses before trial — does not necessarily mean that the then-Attorney General interpreted “jeopardy” to mean literal jeopardy. The legislation would have been equally needed to prevent defendants from waiting until “constitutional jeopardy” had attached,, before securing relief on a motion *336in bar. Indeed, it is because it was thought that “constitutional jeopardy” had attached in the Beef Trust Case (United States v. Armour & Co.), 142 F. 808 (D. C. N. D. Ill. 1906) that no appeal was thought to lie. See infra, at 341-342. Since the Beef Trust Case was the motivating force behind the Criminal Appeals Act, it would be natural for the Attorney General to seek legislation that would force a similar defendant to raise and get a decision, on his plea in bar before trial began, thus avoiding any possibility that th§ defendant would escape by being placed in legal jeopardy.

To argue that the statute was enacted for the benefit of the Department of Justice hardly justifies relying on the Government’s concession as additional authority for the proper interpretation of the Act. The relationship of the Department of Justice to the Criminal Appeals Act is not that of an agency to the statute creating the agency and charging it with enforcement of the Act’s provisions. Indeed when it comes to the question of this Court’s jurisdiction, no institution has special authority for exploring and determining that question other than this Court. The Solicitor General in this case is simply one of the litigants; to give special weight to his strategy in arguing this case at the very least does a disservice to Sisson, who — seemingly contrary to his own interests — has also made a concession: namely, that this Court does have jurisdiction under both the “motion in bar” and “motion in arrest” provisions. The views of the Justice Department on the “motion in bar” provision are entitled to precisely the same weight as the majority extends to Sisson’s views and to the Justice Department’s views on the “motion in arrest” provision.

This interpretation is reinforced at other points in the debate in a manner that also explains why the “jeopardy” language occurs in the motion-in-bar provision, and not in the other provisions. The Senators thought that indictments would normally be dismissed before trial began, so there would be no “jeopardy” problems in allowing appeals in such cases. Similarly, a motion in arrest after judgment was thought to involve no jeopardy problems, because the defendant made the motion himself in an attempt to overturn a verdict of guilty. See 41 Cong. Rec. 2753. But it was recognized that the motion in bar could be granted after trial had started, see 41 Cong. Rec. 2749; and it was not obvious whether in such a case “jeopardy” would have attached in the constitutional sense to prevent retrial. Hence, the “jeopardy” language was added “out of abundance of caution” to make clear that Congress was simply bringing that provision into line with the other provisions: i. e., appeals were to lie only where “constitutional jeopardy” had not attached; but jeopardy, not the impaneling of the jury, was to be the test of appealability in the case of the motion in bar just as in the case of the motion in arrest. See 41 Cong. Rec. 2191 (remarks of Senator Bacon); 41 Cong. Rec. 2756 (remarks of Senator Nelson) (“out of extreme *340caution and to put it exactly in harmony and in line with the provisions of the three preceding paragraphs, we have expressly provided that where the defendant has been put in jeopardy he can not be reindicted”).

The majority’s apparent willingness to accept Senator Patterson’s suggestion that the Beef Trust Case could have been appealed, ante, at 304 n. 57, virtually concedes the issue. For the whole point is that in distinguishing between the plea and the issue on the merits, the Senator was plainly giving his views as to what constitutes “legal jeopardy.”

It should be noted that even Senator Rayner’s amendment did not purport to narrow the scope of cases in which the Government could appeal; it only sought to remove any "double jeopardy” problem by declaring that the defendant should retain a favorable decision, whatever the result on appeal. On the third day of debate, the amendment was agreed to, modified to read: Senator Rayner’s earlier opponents continued to insist that no material change had been made by the amendment, since as they had argued, there would be no appeal in any event where the defendant had received a “verdict” in his favor, see opinion of The Chief Justice, ante, p. 308, as opposed to securing a favorable “judgment” by the trial court’s action in sustaining his plea or arresting judgment. See 41 Cong. Rec. 2820. Without explanation, the Conference Committee changed the amendment to read: Subsequent amendments to the Act omitted the proviso altogether (which no longer appears in the current version.) thus vindicating the arguments of Senator Rayner’s opponents that the amendment had no substantive effect.