Leading cases on congressional investigatory power : 94th Congress, January 1976

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Leading cases on congressional investigatory power : 94th Congress, January 1976
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94th Congress
2d Session


COMMITTEE PRINT


LEADING CASES ON CONGRESSIONAL
INVESTIGATORY POWER


," vPiDA a-

94th CONGRf '
JANUARY A -' -
..t. 3 0fi

_____________ .*-r

M. rop^'
-AP.



COMPILED BY THE JOINT CORMMT1EE
ON CONGRESSIONAL OPERATIONS


Printed for the use of the Joint Committee on Congressional Operations I












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94th Congress COMMITTEE PRINT
2d Session C


LEADING( (ASES ON CONGRESSIONAL

I, NVE"J 1(,ATOR Y IO\V IER






t.JANh 'AYNG 1976
IANIrAHY 197(;


COMPILED


BY TIHE JOINT COMMITTEE


OX (\CONG(,'RFSSR)-IONAI1 OPE!..ATTONS




















Printed for the use of the Joit committeeee on C4'OIp-I--,ill] ()peratimns


U.S. GOVERN.M LNT PRINTING OFFICE


WASH.\. INGTON : 1,'7';


(;-1-5




































JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS

CONGRESS OF THE UNITED STATES
REPRESENTATIVE JACK BROOKS, Texas. Chairman
SENATOR LEE METCALF, Montana, Vice Chairman


HOUSE OF REPRESENTATIVES
ROBERT N. GIAIMO, Connecticut
JAMES G. O'HARA, Michigan
JAMES C. CLEVELAND, New Hampshire
JOHN M. ASHBROOK, Ohio


SEN.A TE
MIKE GRAVEL, Alaska
LAWTON CHILES, Florida
JESSE A. HELMS, North Carolina
PETE V. DOMENICI, New Mexico


(II)












INTRODUCTION


The Joint CommIittee on ('oul.',.gic-.iona 1()ipenratio llns Has lrepr'ed Ia
compilation, '"LeAding ('Cases on (C'ngr,-sioala Invest i:atory P(,wer."
It contains legal priee'dents,. eniinciated byI tlie Federal C(t'outs. wvliclI
may serve as a guide to congiresional coinilmilees iII tle cond()l(ct of
their invest igative hI:a rings.
This publication refers to tho-e leadinl(g cas, which llave decided
issues pertinent to the congressional investigatory pr,.r- It is not a
comprehensive analysis of the legal principles pr!,,s 'lted.
The scope of the study includes a (di-ctission of tile power of (Con-
gress to investigate, the issuian(ce of congressional subpoenas, tli proce-i
dii ral conduct of an investigative he1i ring. aind tlie coi.itf itiit ioml 'igts
of witnesses who appel: before cong.es-ioal cominmittees.
The (Comniittee appreciates the a-4istance of tlie American Law
Division of tihe Library of (Conlgres in tlie research of tlie sta1ttes.
cases and congressional practices wlticlh are tlhe fou)(nlat ion of0t this
study.
The Joint Cominittee hopes that this comip)ilatiol will be of ;i-'ist-
anice by providing insigoht into tlie power and r-pon)(sib)iliies ( )t tle
C(ongrc,- ional in\(-~tigatory process.
JACK BROOKS, Chai,.lv'i.
LEE NIETCALF, Vice (ha;rmniao,.
(inI)



















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CONT EX N T-S


Introduction: Coi ,- i w l I ve -ti,- ory P .r ..... ... .. ... ... .... .. .1
Inherent P(ower of (' ',,-'- I< Ineti ate e 0
D1)'] 111011 of Inve-.ii'. jive Poiwer ( {'ii Co ges o a on i, ~itt(^.. I;
P r o p e r ~ F o n .... .. .. .. ........ . . . _ _... . .. . _....

I .. '. i 1 l i v e t P n r \ s e .. . .. .. .... ... .... . _ _ -. . . . . . _.. . 7
s I ad ( 1 ,- 1 1 1 ri -- - -- ---
P r o ,-Sbrt ; c - - - - - - - --_ .. _ _ . .

Congre('-iona, l iiib i

11") -'lI V i ii il )i1 ( )tF iii('- B i:1V '

sI /1 t': [ ( .':. 17t!
I s *m e !r n 5 (a *I' ->oi'a r m c -, | - n- .. .. .... . ... .. ... .. ..... ... .. .. .... .. ... 1 ;
W a r n t), i ,f A ....... .. ...._ . . .. . _.. .. .. .. ... ... ... .. ...._ ... ._ 15:
itt la ,t Itn ... .. ... . ... . - - -1 -1

{g lii m,'l i);h
N o'dde I ti f r al ji I .
Neieded _Info rm alin.- .. -. .. .. .. ... .... . . .... .. ... .. .. . .... .. .. ... 1 .^

!;lai kct{ KLef ns n: toi (. X o i lv .... .. ........ ... .... ... .......... .. i
Issnaic't of TillpD n t o ; i.
S> nllum iarV ( )b-(erIVal ion- on ( irIal (':i ''. I i- lid Pr t 1" i .... 24
'*ib oc a f o ])orn't!(1 andl Associ: ld ion l i{cro rd- ... ....... ......'
W iii F e es' :{ .. .. ...... ...- . . ... . .. .. ..... . . .,. .. .. _. . .. .... ,,
C onductc of I I ri1 P roc d re........... ........... . ................ .. .... ... 27
o m p!'il (m'(c It .th C-'ornnllilttco IR ,l,'.< ... ...... _.._ ... .. ..... ... . .. 27
Qo1lprlllllc Al P lei,2
Qtiormni
P r ,'< 't i ,m fo r V :, rv, . ........ ...... .. .. :.1
I}l' :lr iilti for (wotXi i )t .em.
One1 \~t SM i R beomrirnit to '... I ... _. .. .- _,---.-
Elxecultive ss ion--... ... .. --. ....-- -------.-----. ----. -- ... 4
Broadcastin,; of Coiv iite, Ileari,,-- i
I [ iis I l ilt . _ _ . .. .. .. .. . . . . ..... _ _ _ _ . ..... . - .... '' ^
S n n lt t Il e .. ... . ... .. . .. ... ...I.. . .... . ; .'
N ".essity of IIais lDutv of IV)it ()'- 1 A r )!( ti(,)r )t a T" lc'hvi -d I l)ca i-;1 1;
Privil, 2 \ ilh ,v v lxti ind 1d to \ witness .... ....-- .--.....
Privi!.._.. of a W itlrss To M iake : Prlimirii St t, .l t .. ...l ... '
A1 ppearnm e, 11i l re Con r in C. -- ..... .......... .
F ailu re T O A p1 -e r . ... - - -- --.... .. .....- --.... .. -----
.\ttenlldaimice it (Cfirit ( I ['a in .... . ....n. ...... ... .. I(
XXitness. I efusal T o B ( oV -' -_ . . ... .... .. ... ......1..... 1)
Constitution :ial R ights ,of WXitni'-ss-e ... ... .. .. ... .... ........... .... -ii
F irI- r A ml ( lc hd n ie n t ... - .. .... ........ _.. -... ... -... . ........ .. ..... ... . . - -*
B- alancinT) T1 s t . ... .... .. I...
As<( li of l rs oA i iilo a I1 t< s a I. I I,, -e o
I l ,e f ui t o A n s v o r .< .. -. -.. . .. . . . ... . . . ... ... . - . - 2
M otive for ? Invt !'im 1 ......... .. .. .. :
C(onlstruetioll of A 'i ,i jrizinia P e-so lltion . . ......... .... -14
First \Amend e-n a< PIri ,,. je tionl .. .-- -- ...- ...-- .
F o u rth - - - --d- --t- - - ---- - ---.. . .. .... ---- - - -- - ..... 4
i']xe' ,, i~ x c d .-'i n ;.;r u l t . .. ... . .. . .. .. .. .. .. ... .. . .. . . ... .. ... . .. ... .. .. .... ... - .* i
P o(<:iii (l i l i a't lit .. . 7 ,- -. ._ - -- .- -5 -. '
F ifth A--- ,i- -din -t ... .. .... .. -----.. -------.... .. ...
S e]1f-Tl i"rim in a.tion ri ...... ..........o.. ... ... .. ...... .... .. *l
i." i.^, irv o f ( '1-in ,; .. .... .. ........... . *-s
'I'oi* of (Clahnni ... . .. .. ... ... .... ..... .. -- *
F onrn of C laim .. ........... . ..... ....... ...-_ ..-- .. ............. *-*s
111lin1 Upon ,l 'a 'lin of Fi'' Amendm nt Pri\ '.. .. t
IT kt ce ,s in W ljicij Fifth Ameindienit i I. ,]]i a>1- .. .......
Waiver of ("Ch 'lai.m -'----.:.i.n........ i
Pres-umption A 'I.n i r W iver----- ------------ ---------- '
(V)








Consit it ional Right, of Witne-e--Continued
Fifth h Amendmnent-Continued Page
Grant of Immunit--..."_ -- _- - 67
Constitutionality --------------------------------------67
Court Function Purely Ministerial_-----_ ---------------- 69
Due Proces. ----------------------------------------------69
Constitutional and Statutory Pertinency. --------------70
Sixth Amendment__ --------------------------------------------- 74
Representation by Counsel --------------7----- ------ 74
Cn mfrontation, Calling, and Cros.s-Examination of Other Witnesses- 75
Specificity of Quiestion.- -------------------------------. -- 78
Inve-,tig.ation of the Executive Branch-Lack of Judicial Precedent------ 81
APPENDIX
Forms -------------------------------------------------- ------ 83

INDEX
Table of Cases----------- ------------------- 99













INTRODUCTION: CONGRESSIONAL INVESTIGATO()RY
POWER
Throughout its history, Coingi.ess has ,ts!,rted its power to inlvesti-
gate, to compel testimony, an(d to punish for contempt. During the
ea rly years of the Republic, congressional investigations, usually con-
ducted by specially authorized committeee., foc l-d primarily oni the
executive departments and instrumenitalities of the Federal (Govern-
ment. Since 1828, however. Cogeiie-;s has also asserted thle right to
obtain from private citizens inforlnationl needed to enable it to more
effect ively meet its legislative responsibility i es.
In early c(-es 1 the courts upheld the congressional a:.-.-rtioins of
contempt power, discerning only two limitations on its exercise.
First. (Congress must have been performing crane act within its
jurisdiction at the time of the contempt, and s<-ond, congressional au-
thority to punish was limited to a confinement which could not ex-
tend beyond the end of the session during which tlhe punishment
had ben prescribed.
This punishment restriction, coupled with the amount of time ie-
quired to hear, debate and decide charge- of contempt of Congni.-.
before the bar of the offended House eventually resulted in thie forminu-
lation of an alternative method for punishing contempt of ('ongres-.
The Act of 1857 made contempt of Congris a misdemeanor punishable
by and through the Federal courts.2
Congress made clear in that act that the statute was enacted to pro-
vide to Congress an optional procedure for ui-e at its di-et ion. When
the Fnifted States Statute. wen. later revi-ed, however, the words "in
addition to the pains and penalti-s now existing" wern omitted. In
KiAbohr,'. v. hI'llomson .3 an 1881 Supremie Court cn,. a witness who
had been tried and sentenced at the bar of the House for contempt of
Congress asserted, in an action for damages brought a e'ainst the
Sergeant at Arms, that the owi:ion of tho-c. words showed an in-
tent by Congress to strip itself of its inherent P)ower to punish for
contempt. While the Court in Kilbo'urn did not decide the question,
it was raised again in In re Chapman,4 where the Coirt declared
It [the Act of 1857 as amended] was an act necessary and
proper for carrying into execution tihe powers ve-ted in Con-
gress and in each House thereof. We grant that (Congress
could not devest itself, or either of its Hou-,'-. of the is-ential
and inherent power to punish for contempt, in ,'nves to which
the power of either Ioii-e, properly extended.5
After Kil*bov, i,. there was some doubt as to whether the legislative
power of Congress as circumscribed by the KJ11o'ov (l decision w- a
1 AvderPon v. Dunn, 19 V.S. (6 Wheat.) 2114 (1821) : Ex parte N',',,' t. 1S F. R '-. 471
fNo. 11r:75) (D.C. Vir. 1S4,q).
2 \,t of 1S57. 11 Stat. 155 (1887).
3 102 U.S. 16S 1.^i).
4 166 TT'.S. 661 (1'.7).
5 Id. at 671-72.
(1)








sullicient basis to compel testiniony in aid of legislation. These fears
were dissipated by McGi'ain v. Daugherty,6 where the Court held:
"We are of [the] opinion that the power of inquiry-with process to
enforce it-is an essential and appropriate auxiliary to the legislative
function." 7 The inherent, power of Congress to punish for contempt
was last exercised in 1`34 and the authority of the Senate to try the
charge of contempt before its bar was upheld by the Supreme Court.s
Sillce the Senate is a contiIII]ing body, it has been held that its power to
punish for contempt is not limited in time by adjournment or periodi-
cal dissolution.9
A lthougli there is ;ip)le judicial authority confirming the right of
either Houllse to ex:rs" it- inherent power to punish for contempt
witliout relying on the courts or statutes which serve to supplement
that power,10 the recent practice is for tile Htiouse concerned to direct
that the contempt be certified and forwarded to the U.S. attorney for
prosecution. This course, refeTrred to a': "criminal contempt", is con-
dn'ted clpursuant to 2 U.S.C. 19').which provides:
Ecereil person who hla'r',g bee) suntinmonI, as a witness by the
aqfhIorf/y of either House of Congqress to q;re fesftmony or to pro-
d'uro pi'p rR upon. aniy matter wuder ioqliry before either I7ou*i:. or
any jo'n.t comm.ntthce establ.thed by a joint or concurrent resolution
of the two Hou.,-,. of Congr s., or ny (-omm;ffttee of either Hou .e of
Congress, ;71fuTfum1f .maq'e,. default, or who. lJi,'g.q appeai'rd. reiii.s,.
to ,i'nswter any q(estfion pel''rf/Ine to the question mnd/or inquiry. sh7,11
be deemed qtilty of a m; dermeanrpor, ,imL?.ble bv a fOP of ,,ot
more than $1,000 nor, less than $100 and imaprl;onteft in a .onmofo)i
jail for not less than one monthly nor more than twelve months.
While the vast majority of investia.-tions conducted by congres-
sional committees are predicted upon tlie need for information to aid
in the legislative process. other responsibilitie, also require fact finding
procedures. Congress must inform itself of the need for amendments
to the Constitution. Article I, Section 5. clause 1 of the Constitution
gives to each House the power to .udge the elections, returns and quali-
filations of itQ Membllners. TEili House hls a responsibility to discipline
its Meubers. Oflher constithif ional functions which have required the
use of co, uuressional investigatory power have included: confirmation
of nominees for public office, ratification of treaties, the guarantee to
the States of n renrblicni form of government. and the impeachment
of Federal executive and judicial officers.
As broad as the power to investiiiate is. it is not without limits. The
selp ration of powers doctrine was involved in Kilbourn v. Thompson to
prohibit congressional investigations with respect to matters pending
he fore the courts, as to which no valid legislation could be enacted.11
It has also b) n asserte(l that Co)ngres, lacks authority to inquire into
im1tt.I's which are within tlhe exclusive province of the executive
8273 T.S 135 (l:'-7).
7 I afIt 174.
.!1,., -n.u v. if nirarT.'rri. n4T' V.S. 125 (V)35).
If( (r ',:; V. DanfqheI'ri. 27. U.S. 13.5. 181-82 (1927).
lnit re (" riin iij. IM Tf S (11. 671-72 (1W177) : vt,'kii. T'fited ,tRlfte.. .354 V.S.
17< 20'6-7 (1).-7) ; Tobin v. United ftafrte.q. 306 F 2d 270. 276 (D.C. Cir.), cert. denied,
371 '.S. 902 (19(121.
11 See f0-) Sinclair v. T'nifrd P .afc-?. 279 q'... 2Ri3. 294 (1929).








bl anch 12 and thliat Congi'-^ li:,., no power to legislate upon -iiljects
within the rese rved power of the States.'3
The Constitution a:o, protects the individual citizen firiu unwar-
ranted congressional intrusion. A witness ,:1n, not be forced to give
evidence in relation to his private affairs unless that in fo-mation is
needed by Congress to fulfill one of its constitut ional functions. Even
when an invest ration has a valid pirirpis. the wilN ,.>s :i,1y haI a
constitutional privilege to refuse to tc-tif!y. Rights utider the Fir-t
and Fifth Amendments have frequently beein -.-evt ed as a lawful
excuse for refusing to answer questions a,-ked by co-0'2 .--'onal
committees.
Following is a compilation of general lprincipls.- einnlciated
by the Federal courts conc'ernilg tie aut lority of (Congl-r to investi-
gate, in furtherance of its legislative responsibilities, private individ-
uals and org(raniz:at ions, and the duti s of coiiLr,..,ion:il commiti.,*, to
re-pect the constitutional rights of wit ii.--: who appear before them.
12 Barenblatt v. United [tatcs, ::,i0 U.S. lip'.. 112 (1 7-.0').
1 Unllited States v. DiCarlo, 1I "- F. Si. i' 597 (N.D. Ohi lli. -2).














INIHEIRENT POWER OF (4ONE'() l'SS TO INVESTIGATED
The power to legislate conferred by the Constlituiion of the
United States on the Congress implicitly confers power to compel
the attendance of witnesses necessary to furnish information
needed for the efficient exercise of the legislative function.
The :-le as to whether tile ("o,-, -- 1ad lhe plver to exact in fo)rma-
tion in aid of its legislative function ,was ecid(ed in t"he alirnalevc in
Mc i',ii v. IPie1 'u .r The Court said:
We are of [thel opinionL that the poiwerof inquiry ---with
plo<-ve-s to enforce it-is an es:,iintialI a iIpprop )lriate aitxilia vY
to the legislative funcmtion. It was, so re'atdled and employed
in Amileric'an vi,.,i l:-*ti:,.- before the Constitutioii n(ll was franmied(
and ratified. Both Tlou,.- of (C'ong,.-- took this view of it
early in their i ,t orv -tlhe IHoii-t. of Repi, -. ta-ttives wvit) tlhe
approving votes of Mr. Madi 1l n a ied ot vne l)es wh.,--
service in the convention which franid dtlie (Const ii tio" 1,0Ves,
special siPTiifi'; lice to their action--a-id boIth ioho i-.- h1ave
employed tlhe power accordingly })p (to the )pr, -(nt tiine. Tlhe
A( ct of 1798 and 1 R 7. ij(lQ'el Iv tleir 'omp.0 rehen)x ive i e' t s.
were intended to ,ecognize the existence of this pov:er inll
both h1oe,, and to enable then to employ it "more effectui-
ally" than before. So, when their practice in tlhe matter is
appraised according to tlhe circumstances in whiell it was
beaun and to those in which it has been continued, it falls
nothing short of a practical construction., lon conlitiluled. of
the constitutional provisions respecting, their >owers,. and
therefore should( be taken as fixingr tihe ir',,nh1r of' tfio'-'
p)rovisio nsi f otherwise doubtfuIl.
:i*
A legislative body cannot le-islate wisely or effectively in
the abl-ciee of information respecting the conditions which
the legislation is intended to affect or elcanzre: anId w!iere thle
legislative body d(lve not it-elf poe-. tle requisite informa-
tion-which not infrequently is true--ree'fu1'-,' mn ust 1Ve had
to others who do p0o--c-s it. ix)pevienvce lias tau.r'!)t tliat ii,,rt
requests for such information often mare navail "u, and also
that information which is volulniteered is not always acculirate
or complete: so -omne nIeans of compullsion are essential to
obtain what is needed. All this was true before amid when the
Coiuziitition was fa:Tmled and adopted. In that period( tlhe
po-or o( ifnirv-vitl enforcii" procw;':-- wasI 'a'lrdil 1iI(
e(111)]ov(,d al aa ,Ieessar alnd al)prop))riate attrilbute fJ tl(he
power to leorislate-indeed, was treated as inhferinff in it. Thus
there is ample warrant for thinking, as we do. tliat tlhe 2' 27: '.S. 1;.- (1'.i27).








stituttional provisions which commit the legislative function
to the two houses are intended to include this attribute to the
end that the function may be effectively exercised.15

D]:LEG.VI'IoN OF IN\EST.TI.VrVE POWIR: TO CON -RESSI(ONA.I. CO3MMI1IrEES
STANDING RULES AND SPECIAL RESOLUTIONS
The investigatory power of either House may be delegated to a
committee either by the standing rules of each body or by special
resolution, and whether a committee is authorized to exact cer-
tain information from a witness appearing before it is determined
by reviewing Uie scope of the en'ablir.g resolution as adopted by
the parent House which initially authorized the investigation.
In Uj,;,mio Shfil s v. Rumcly, 16 a witness, secretary of an organiza-
tion which engaged in the sale of books of a particular political
"tendon tiousness," refused to (disc-loe to te Ij bouse Select Committee
on Loblyin A.ctivities the names of those who made bulk purchases
of the-c books for further distr",',tio'i. The witness was found in
contempt of Congress under 2 U.S.C. 192. The court of appeals re-
ver.ed the conviction and their decision was affirmed by the Supreme
Court.
The pertinent portion of the enabling resolution authorizing the
commit t ice's investigation reads as follows:
The Conimittee is authorized and directed to conduct a
study and investigation of (1) all lobbying activities in-
tended to influence, enlcouira"e, promote, or retard legisla-
tion; and (2) all activities of agencies of the Federal Gov-
ernment intended to influence, encourage. promote, or retard
legislation7
The Court held flint the investigation wa. limited, by the terms of
thle resolution, to activities constituting direct contact with Congress,
and did not extend to tho.e broader activities, as flie Government
contendoled,. such as attempts to infliunce the thiijinn" of the community.
In writ inm the opinion for the majority, Jlstice Frankfurter stated:
As a matter of English, the phrase "lobbying activities"
readily loendl; it-elf to thlie construction placed upon it below,
10m1ly, lobbyingn in its coimonly opted cense," that iq.
"riepresetntions mlare directly to the Connress. its members.
or its cnmmnittpe,." 90 App DC 32, 291, 197 F2d 1(M6. 75,
and doop not reoch what ws in Chairman Buchnnan's mind,
attempts. "to sp rate the tlhill.:idn of t-e c,,mm11niv4Nv." 96
(,',"e 2.p ?,.. If "lohhwin.," w.s to cover all activities of
vivuon, intendii\'y to influnce. encournre. nr'omote or retard
leufilM tion, why did Conpre;: dlifferentiato between "'loblvinff
activities" andotl,' '",'ti\itios * intended toinflucnc.'"?
TTnd Conmvress ,-i4hed to nutlo10ri70o so eNtensiv an investi-
,n ftion of the influences flthait form public opinion, would it
not havo iied I1nnriine at lenst as explicit "s it emniployved in
the very ren1lition in question in niithloriin, investigItion
d. nt: 17 5 7" (footnote omittpd).
-:75 Tr.R 41 (i95.9).
A7 I R l i-. 21S). ql-t C.,nz. 1st SPss (1949).







of government agencies? Certainly it does no violence to flw
phr ase "lobbying ,:itivities" to give it a Ilore rv-t icJte(d ,pe.
To give such meaniii- is not bnI red by intellect al lIom-.i v.
So to interpret is in the candid -t.rvice of avoidillr a -'rriotis
constitutional doubt."8

PROPER FORM
Legisl, /;c, I1#Prpose
Although (ong :,ess; po.ssees inherent power to conduct invtms;-
gations, a congressional resolution autliorizin.p such must be
passed in proper form. While it is a belter practice for Cong,-ess
to state specifically its investigative ptirpose in the authorizin,
resolution, such language is not nece-,. arily a prerequisite to the
validity of the resolution. A legislative purpose may be inferred
from the subject of investigation and indeed the U.S. Supreme
Court has declared a presumption in favor of tl'e ex:istence of a
legisla ive p:.rp(;oe.
In J[(, ,.. v. It)agy1 ,//,"' the original i -olution thliat autliorize d
the S,1ii.nte investigation made no mention of a legislative purp<- ,. A
subleiiuent i.-olution for tC:, attachment of a contumnaciol :- vitiess
declared that his testimony was sought for the purp'l-e of obtainiin
informationn nec(,esa ry as a basis for such le., nativee: and otler
action :N. the Senate may deem nee(s.-;rir1 a(nd proper." Tll(e (Co'ort
found that the investigation was ordered for a legitimate object. It
stated
Tie o1v legitinm ate objectf thle Setoate could Ilave iII order-
ing the investigation was to aid it in l,_i-1ating; and we
think the subject-matter was such 1 that the p1);,.-iini)ptiol
should be indulged that this was the real object. An expr,.-,
avowal of the object would have been better: but in view of
tlie particular suibject-matfter was iot in ( ispel -:1 l) e.'20

The second resolution--the one directingi that tlhe wit nl.-- be
attached-de clares that his tc-tim1onv is sounghlt witl tlie
purpose of obtaining "information n",',s..ry as a basis for
such leooislntive and othlier action as the Senate nma'v de-'1l
npes-.1rv 1and proper.'" This avowal of cointviltphut c',i-
tion is iP accord with w\Vht we thl;'11 is the iiglt imle"! ;".". "ion
of tle earlier i.-.llti+- n d!ol eclie12 the invetjc i-Uat! i. T'e sl-
(restedl poo--ibilitv of "other action" if deed1 "I *!'.--:i o'
properl' is of course !open to crit o ricis il riliat t(,'ee 1 Qt her
action in tlhe matter wlic. would be within ti(, power of It e
Senate. But we d( not ;I-- nt to thle view that tlin il(dlefinite
and 1ntet':04le sug,-gestion invalidaltes thle entire pmc'. ,lin,.
The ri!I)t view in 0 011r )inion is that it takes fnotlIii i 10rom
tlhe lawful ojec't avowed il tile -,111e fc-olition and ri,,-'tlv,
inferable from the :Irlier one. It is not as if a inad i' -ible
or unlawful object were affirmatively and (definitel avoaVed.-21
V' United Rtatex v. RIumel if. 345 '.S. 41. 47 (1951) (oinssion'l in origin:ll t', o
.';i,, N. ;> v. 1 'Iited ftate,. 279 T\.S 2 ; 29) (1' 29): .6','ain v. I',," ',Ji' c it 27": V_. S .
158. 160 (1927).
V 27:; 1-S. !:V,"-i (1927>.
2J id. at 17S.
21 7W. nt 1-1n.








Congress need not state explicitly what action it intends to
take as a result of an investigation.
A It's,,ltion authorizing an inquiry into charges of corruption
ao-ain:i ,-ertain Senators was lhel(1 valid despite the fact that it was
silent as to what might be done when the investigation was finished.
Speaking for 4le curt in In re Chapmcan.22 Mr. Chief Justice Fuller
wrote:
TIic questions were undonltedly pertinent to the subject-
matter of the inquiry. Tihe resolutions directed the committee
to inquire "whether any -e nua(or has been. or is. speculating in
what are known as sugar stocks during the consideration of
lihe tariff bill now before the Senate." What the Senate might
or imiglt, not do upon the fai'ts when ascertained, we cannot
say, nor are \\e called upon to inquire whether such ventures
)liLht be defensible, as contended in argument, but it is plain
that weg5ative answers would have cleared that body of what
the Sen1ate reia rled as offensive imputations, while affirma-
tive a;n1svrs might have led to further action on the part of
the Senate --ithin its con-titit ional powers.
.,or will it do to hold tihat the Senate had no jurisdiction
to pur-iie the 1 arrtcular ini'uiry because the preamble and
Il-,,lutions did not sper'ify that the proceedings were taken
for thie p]irpos:'.. of cen.i.re or expJulsion, if certain facts were
di-,loseil by tie investigation. The matter was within the
ran512, of the constit ittioal p:)vers of tl!,C Sr-nat;.. Th, 'v'eso-
lutions adequately indicated that the transactions referred to
were d(leemed by the Senate reprehensible and deserving of
coldlemnation and punishment. The right to expel extends
to all c;isc.s w]erel time offense is such siS in the judgment of the
Son;ite is inconsistent with the trust and duty of a member.
S** *
We (i-Lnsit nsiiisi ;,:i this record tli:at the action of tlhe
Sv :,,te wa,; without a lc,'itimate oblject. and so elcronih upon
t, prn, :e of tliat body. Indeed. we think it affir'-., iv'..v
;ip)<';trs tli:,t the Senate was acting within its riflt. and it
w:, 's ce rtainly not necessary that thlie resolutions -:luld declare
in advanrep wvlot the Senate meditated doinii when the inves-
tI:,; it ion ws cmcluded.23
>'1" 5Z,"i( V-brrt il/atter
Iknv-sl iations. may be conducted by subcommittees when they
are rocv'y authorized to do so. The line of authority from the
1H(Use to a committee and then to the subcommittee must plainly
anr exp'iiitly appear, and it must appear in terms of a delegation
wilh respect to a particular, specific subject matter. Absent proof
of a le'r delegation of such authority, criminal contempt of a
cc ,', i-e-.,inal cowimi1t'e" cannot be sustained under 2 U.S.C. 192.
,I, (/. ,",, v. : ii,,/ ',//! 2,', ...4 a ,Iitls- )p l.rcd l f'f,'e 0 S i u -onU-
mi tU(, Iof tlie IlI, il!- ,Ii'ttce on l-n-Ai.i\',;ira Activities and refused
1i6l. i" r,1 (lS97).
7/ 1, at r;!' 70.
24 ,4 V 702 (1966).







to answer certain questions concevrnii ing his affiliation with the (Commiu-
nist Party and cli:alleinged the authlorizalion of the subcommittee to
conduct its invest igation. His conviction for colItelIlpt was rever:ed by
the U.S. Supreme Court on tlie grolnmd thliat the subject of the inqiriyY
was never specified or authorized )by the committee, as required. by
its own rules, nor was there a lawful delegation of authority to tlhe
subcommittee to conduct the invest ilation. It said:
Rule I of the Rules of Proedidure of the House Committee
on Un-American Activities provides that "'No major investi-
gation shall be initiated without apl)proval of a majority of the
Committeee" Rule XI, par. 26, of the Rules of the House of
Representatives requires each ( Comnittee-of thle House to keep
a record of all committee actions. There is no ie-ollution.
minute or record of tlie Conimmittee authorizing the inquiry
with wlihicli we are concerned.
The Solicitor General's brief in tflis Court states that:
"Admittedly, there is no direct evidence that the (Comlmittoe
approved the invest ,;tionl of Commiiuni-t activities in the
field of labor whichli the li,:ring's at which petitioner was
called to testify were a part." A fiotnot(, to this statement
concedes that "WVe 1do not displtie that tit is invetig actionn was
a 'major' one and that approval )y a majority of the Commlit-
tee was therefore req uiired.-
Tihe Government's only plea ill a\voidnllce of this obvious
deficiency is tilat we s o)1ld "(1 nfer" Co(milwftee approval of
the inquiry at which lpetitiolner was eq1CiiCi'l to respond to
questions, b,.,i.;.e it was part of thle (Commllitte's all,2-',d "con-
tinuini" inve,.-t igation" of ComminList activities in tlie labor
field. But this is clearly impll)ermiissible.
WVe are not here dealing witli tlie jis!i lfic(atiol for a1 iM-
vestigatioiin v a committee of thle (CoIgress ias imatter of
cong'!-.-,on :lu adniinlistration. TIl:ri is aiei -sl five matter.
We are here concerned with a criminal p I)ceedi i. It is
clear as a matter of lavw 1it lie imal slalt a ,V of thl e ;im-
inal law must be o1lserved, inAlsldCi11 plrop)er all'at lion ad
proof of all the es-, intia1 eele means of the ofit, -, Moleovm'.,
the Congr .-. in enacting g. 19)2. s. -ifi-.,lv i eai' I that i1
relied 1 nOtli Jle Ol/l's to ap)ly lte exactig s!:li,1'Js of
criminall i111lrisp)rl1udcf1ce to -,a1i' of contempt t 4if (' i"." i
order to :i --lie t~lit tit e ('I(L'es! 'io l il vesti.. tp'e ".
w lien enfio]er
The Itoise C( 'i, i *,;ee o0- Inii-Aiiericai A.- ivit lias it-
self lrecogiri,,,, tlie fndi ipchiem il itii)olrts ce ()of ap,''i' I -
thiori:;It ion by providing in its 1Vule I !th1:,'I I 1i11ia ill(ilriY
imiust be initiated by vote of a majority of thi, ('o(.niitlee.
W-el, a conllmittee'rule relates to a matter of :-ichi impor'-
taiice, it, musst l)e strictly ob-i'er l. I '-,' v. I! ht
374 S 109. )10 L ed 2( 7T8, ;S Ct 1S- I. Since t le 1'r iS(
inquiry is comceledlv I ,;i rt of a majorr ilv,.-i _: Itioui" :ll the
Coninmittee did not authorize it as required bv its own ll i I.
25 Md. at 7'i; 1i7 (fodotnotes omitted).







this prosecution must fail. There is no basis for invoking
criminal sanctions to punish a witness for refusal to cooper-
ate in an inquiry which was never properly authorized.2'
*..
It should be noted that Rule I of the Committee has a.
special significance in the case of the House Un-American
Activities Committee. The Committee is a standing committee
of the House, not a special committee with a specific, narrow
mandate. Its charter is phrased in exceedingly broad lan-
guage. It is authorized to make investigations of un-American
and subversive "propaganda" and "propaganda activities"
and "all other questions in relation thlereto that would aid
Congress in any necessary remedial legislation." To support
criminal prosecution under 192, this generality must be re-
fined as Rule I contemplated. Otleirwise, it is not possible for
witnesses to judge the approl)riateness of questions addressed
to them. or for the Committee, the Congress, or the Courts
to make the essential judgment which 192 requires: whether
the accused person has refused "to answer any question per-
tinent to the question under inquiry."
It now appears that the investigation and the "question
under inquiry" in pet itioner's, case were neither properly au-
thorized nor specifically stated. Nor was the purpose of the
inquiry clearly understood, apparently, even by the members
of the Subcommittee themselves. Although at the outset of
the lieu rings the Sui.ommittee Cl(ai rnmi did allude to "Co1ii-
munist Party activities within the field of labor" as the sub-
ject matter under investigation, statements and declarations
of Committee iimeml)ers were at variance with this purported
purpose. The recital in the second and revised indictment that
it was "Communist Party activities within the field of labor"
waN. therefore based on quicksand. Obviously, this Court's
decision in Russell [R..sell v. U;tf-J Slatcs'. 360 U.S. 749
(1';'2) 1 cannot be satisfied by a mere statement in the indict-
nment. having no ,underpining in an aiiuthorizing resolution.
that tli(e recited subject was in fact the subject of the inquiry.
Russell called for more than a drnftsmai1an's exercise.
Tl'ere is in this case another fatal defect. The hearings in
*hi,.1i petitionmer was called to testify were before a Subcom-
mittee of the House Committee on Un-American Activities.
Pimmsis:mnt to Committee authorization, the Chairman on Feb-
friary 9. 1055. aipp)oiited a Subcommniittee of three members
to 'conduct aenrim.s at which three named witnesses, in-
chmdimng1 petitioner, were to be called. Neither the resolution
no!r '1v iniiitnes or other records of the Committee stated
the 1bjf1e,.t i,) i;', i oinmitted to hie Subcommittee or other-
wise desrilled or defined its ijurisdiction in terms of snubiect
matter. ()Oiee a'n in, we emphasize that we express no view
a- to the appropriateness of thi' procedure as a method of
,',d ,ctin. ,oigrTve,:ioal bhiqines. But, once agnain, we em-
plia.ize that we must consider this procedure from the view-
1 -1 J.t 7 -' ll.








point not of tlhe legislative pro1 .-. bilt of the ad(niiist'itiou
of criminal justice, anid specifically tlie applicatioll of Ilie
criminal statute which lhas beei invoked.
Viewed in this perspective, tl(h problIlel admits of o11v
one answer. Coirts administering" tlhe criIIIimil law calIlIot
apply .-uaction.s for violatiil of tle mandt(lale of an :IL' I!('v-
here., the Subcl(ommittee-un1less that a Ireic-y's aIthlloritNV is
ch; r and 1. l- been (conferired in a'ccordance with law.
We do not q(l-tioll ilie auitholitv of tle (Coiii.'littee ap-
propriately to delegate fliunt.,os t) a slibcomllllittee (of its
members, nor do we doubt tie avai.l)ilitv of } 192 for pilii-!i-
meet of contempt before sItch a sub(coimmittee in p1)ro)per c;,-.
But here, not only did the (Colniiittee( fail to autlloriz;., its own.
invest i. nation, but also it failed to spe(ifv tiliet subject of ill-
quiry that the Subcommittee was to uiidertake. The cril i ia:11
law caiiot be used to implemeiit jurisdiction so obtained.
without metes and bounds, without statements or (dt.-.'ri)tionI
of the subject committed to the Subcommittee. United States
v. Seeger, 3,03 F2d 478 (CAd Cir 1962) Cf. Un ied ,tat -,
v. Lamont, 18 FRD 27 (DC SD NY 1955), affd, 236 F2d
312 (CA2d Cir 1956).27
27 Id. at 711-14 (footnotes omitted). See also United States v. Lamont, IS !-'.R.D 27
(S.D. N.Y. 1955), aff'd, :2:;I; F.2d 312 (2d Cir. 1!151;) ; Ut, iti States v. Kamnin, I.;f. F. Supp).
791 (D. M I--, 1:,7,;).


62 125-761
















CONGRESS* ,I(NAL Si BPOEXNA IP )WER


(Co.MPE1xING; TI.:FIMOxY V\ITIIOIT rUBI'I ENA

VO)LU. i.Al:Y API'I.A\IA\N('E
A witness appearing voluntarily before a committee is punish-
able for contempt if he fails to answer the questions asked by
the committee.
In Siwc,-a,'I v. U oitucd Sl proof of any authorized inquiry by the Conlmittee on Public Lands
and Surveys or that he was legally suniiimmoined to appear before it-
although hlie in fact did appear. The Court held that "Ser ion 102
[Contempt of (Congre-s] plainly extends to a c;.,e where a person volun-
tarily appears as a "1l:, i.ss without beillg summoned ;is well as to the
ra-e of one required to attend." 29

WARRANT OF A.',E;ST

If the House involved believes that important evidence might
othe".- -e be lost, it may issue a warrant of arr?st to insure the
attendance of a witness.
In B'1i, I,'g v. TV.,;f Af/ffefd e.. et. CStt;t'//e,, ,,.:l0 a \ivh,.-. had re-
fu-il.d to allswer questions propouti(ed by a -,i'cial :Si.ite ( miittee
authorized to inl(ujire ito t ., validl ity of tlhe election of a S-.nator. TIhe
committee reIported its jwroC .,.l'ng1s to tlle Senate, !. 0:1, ending2 that
the witnt-- be adjud,,,.,l in collte:.,it 'of tI f Sen ,:e. In-'-.,d. tr-1 !l-
ate a-!opted a 'I-:lutiou re'it intgi thle '.. i i! cont,: w ,. avd instns;t-
inif tlhe Presidelut to I-i a ; :,. nt commanding tle Sc' (;it ;r
Armns to take tihe witne's into c'n-sto 'V a11d lwingl tiil before the 1 .r
of tle SeIate to a:swer qI -'P i< 0- ,,rti lit thie hieitt'r iJIlc,
::.,;::its.
Ti'1(e w it e,..- iimii,,diatoly bl -ou' !t*i:,r ,, iall :s colw ,: ',-'riot .oi rt. d -." .: ""'.f' tli ,' i l` Im tlie c',.i- rt o f '11 -.,Is l ..r e 'I
tlie h t th t. if i, shiould(l be I'v :,r1 l as 1i 1 i -: t1 promi. 1',e 11t, Klr tlCHI wii ..-,, it was void t,,a'--a a sul)I) attend st Ihe :t' o i
...iii'e hia'( not lrevi ii -Iv ber'i I<- im la id t1 t:11. *- S 1-
ntisi .* tlhe --',:, of n a. :iclime. t. lie >a.', ii (Ii. Thc-
v :-.-. the .deci sioll of ,I of r,])i i r ii l i:i;t if b1 Sc,;'r,
1 > -,,1 ,l)l' 1. lieved thlat im; *',TK : ,vide:\i meri,, t K l.'rv-i:- I ,n t
rii'" i- :a ii. its we ,,, cfi o f i -a to -',nc th1 :Il(1.'lI'? ; I*' witK' i.
it wi o- not for tlhe ,.,cr- jo -.,y that it ;cl alp-,.l its dilv'rel '!.e 1

='*'+" /. t '2' 1
-"2 '17 ">9 flP-"i
Shi ;i t :*'9.
(13)








REGISTRATION AND QUESTIONNAIRES

It is well established that Congress has the power to secure
needed information relative to legislative action through registra-
tion and answers to questionnaires.
In several cases the courts have upheld statutes requiring the filing of
inforiiiatioii with admiiinistrative agencies on the groulid that such
statutes are an c 'rcise of the legislative power to obtain information
in aid of legislat ion.
In Electric Bond & Shaare Conmpacny v. SeruiHics and Exd.farirle
Co/imn is.on32 certain publ ic utility holding companies challenged the
validity of a law which required them to register with the Seciurities
and Exch.ange Commission and to furnish information concerning
their organization, financial structure, and business operations. The
Court 11pi lield the requirement, saying:
We need not now determine to what precise extent these
defendants are actually engaged in interstate commerce. It is
enough that. they do have continuous and extensive opera-
tions in that commerce, and Congress cannot be denied the
power to demand the information which would furnish a
guide to the regulation nece-saiy or appropriate in the na-
tional interest. Regulation is addr-esed to practices which
appear to need supervision, correction or control. And to de-
termine what regulation is pfspntial or suitable. Congress is
entitled to consider' and to estimate whatever evils Oxist..
*( *
Congress lias further declared in paira'rajh (b) of that
section, upon the basis of facts disclosed by the reports of the
Federal Trade Commission and of the Committee on Inter-
sthile and Foreign Commerce of the House of Representa-
tives, and otherwise asoertniiied, the circumstances in which
the national interest and the interest of investors and con-
suimers may be. adversely affected by the operation of pub-
lic utility holding companies. And after this catalogue of the
abses whilt may exist in the circumstances described, Con-
gress declares it to Ne its policy "to meet the problems a1d
eliiiimimate the evils as enumerated in this section, connected
with public-utility holding companies which are engaged
in intcrst:,te commerce or ii activities which directly affect
or 1m-rden inter-:t-+e conmmercp. Without attemljpting to state
thlie limits of permissible regulation in the execution of this
de-la-Ired policy, we hav-e no reason to doubt that from these
defendant, with their highly important relation to interstate
comnimer-e iand thlie national economy, Congress was entitled
to ,hemiand the fullest information as to organization, finan-
cial s< riiture and all the activities which could have any
bearigii-I upoi thle ex.eiie of congressional authority.34
T" ..ii: V.9. 419 (1l93R).
Su Il. at 440.
:[ :i at J41.
The rpffist' ation riiiiir'nicf.ts of tih' Slp' tivrp Serviev andl Traininr AM or 1940. 54
sint v4-, (1940), wiro hi|li rlld upiol Inilhar re'nonin. in United S.tates v. ?.'i/pl/port.
:1;I F. S4pii1. 915 (.R.T N.Y.). tiff'd suh norn. United Stotesx V. Ilferling. 120 F.2-1 2"r f2d
Cir. 1941) tpercuriam).







ISSUANCE OF CONXTIaI:sII:INAL SUBPOENAS
Both the House and Senate by rule authorize their committees
to issue subpoenas requiring the production of documents and
the attendance of witnesses concerning matters within the juris-
diction of the committee.
House Rule [XIL 2(m), 94th Cong. (1975)1
Formerly the House -.lectivelv r:,'!iite(d subpoena power to sevenial
standing committees by rule. The renmaining standing commititt(' and
select or special committees obtained the subpoei, po\vr from the
Hols,-o by) separate r,-olution. With the adoption of II. Res. 988 (!):'d
(ongv.._ _... S ), te lie()n,.( e'tend(d Iits ;,enenri grant of the subpina
power to all of its standing committees by rule.
S, .'te Rule [2 U.S.C. lXb]
The Senate also grant, tihe subpoena power to .;il'h of its standing
committ(,ee(- (2 I.S.(C. 1901)). Ifo ever, 190b also grants the sub-
poena power to any subcommittee of a Senate standing committee.
The rule does not outline tlhe fori:alities for the issuance of the
subpoena by the Senate committee or subcommittee. Instead com-
mittc- and subcommittees generally adopt rules which require au-
thorization of a subpoena by a majority of the members of the
committee or subcommittee and which permit the subpoena to be
issued over the signature of the chairman or iv mellber dezilated
by the committee or subcommittee.
In She'lton v. I',;ti qtate.,?:' a su1)bpoena issued to thie defendant
whose name appeared on a list submitted by the subcommittee coi i-,l
to the chairman alone was invalid:
The Senate Internal Security Sub'" mnitt'. *.;is( criiedl
pursuant to Senate R .-lution 3(;6 of tlie Eighty-first (Co -
gress'. Seond Ss.ioo. Section 2 of that r' olution outl i r,- tlie
power of the Subcommnittee with I c-pf to thlie attend'lnee of
witnesses at ,cirings: 'The ,. mnimittee. or any duly aiuthor-
ized subcommittee therei)f, is authorized to re(qltire Ibv
subpenas or otherwise the atteiicdlanc('e of such wilin-'- * *
as it deems advisable. * Siibpcmis shall be i.--iied by the
chairman of the committee or the )- )i;)mnittee, and ma, be
serve(] by any peri-o de,-.ilted by such chairi ani.' Examiina-
tion of this authorization d iso-i- that t e ,',iution divir.
the authority with respect to the atte:idn!i', o' of witil-',,- into
two parts. The fi-I ,i .s to flie comilliitee or su,.)mmittee
it-el f the di,-rMtio -, ; :--- flincti( 1 of callit r '-ih witnc-e s ":
it deems adv..,:idl,'..' Thri- it Ipla-., in tlb" Suil,. inmittee th,'
power l'nd t1(, rc.,PO;)o di f;i/ i f (4 ,. .i lino" who sl.*ll 1of ',:H1',,1.
It the i)'.-, the mechani. :1 or ministeri-il function of
issluingl the sub' oeii- in the clinirm:i-I.
Here, adniittedly. flie Subcommittee did not dcir.ermine the
witiies-e; I to (.clled. But the Govei':,enit points to Rule 2 of
tl'-., Subcommittee's rulo'. nidl arciles tl!It, si.', the Sl.'.om-
mittee its-'.f has interpreted 1 the re0 'olutionl in j- Rule 2. the
court must accept that inte'-pil rhition. Rule 2. however. ,...rei'
35 21 7 F .2d 6 0 1 (D .C C ir. 1:",: ".).







refers to thle ministerial duty of issuing sib)poenas. It says:
"Subpenas for attendance of witnesses ::: shall be issued
by the subcommittee chairman or by any other member of the
subcommittee designated by him." Thus Rule 2 would allow
the chairman to delegate his imuinisterial responsibility under
thle resilut ion for issuing subpoenas to another member of the
Subcommittee. Rule 2 makes no reference whatever to the
dliscretionllary fnllction of calling witnesses "it deems advis-
able." which function Senate Resolution 366 imposes on the
Suibcoilmittee itself. Since the Subcommittee did not author-
ize the issii;liwo of the subpoena to Shelton. the subpoena was
invalid. Compare Yellin v. United States, 374 U.S. 109, S.3
S.( "t. 1s28. 10 L.Ed.'2d 778 (106.3).
Actulallv. one cailnot rad this record without realizing that
the whole fiction of determining who the witnesses would he
was (Ide f'fo delegated to the Subcomminlittee counsel. Not even
the c laiiinan. by hi, own admission and that of the Subeom-
millttee counsel, madle the decision to call Slhelton. nor did lihe
know why Shelton was called. Thus. assuminng the language of
Senate Resolution 3U6. "Thile committee i[mlay] require by
subpena or otherwise the attend(lance of s.rl-h witnesses * *
as it deetllij advisablee" r-an be read to mean "as tlme chairman
(des advisalble." still the subpoena to call Shelton was invalid
becausee the decision to issue it was de frIto made by Subcom-
i t tee counsel alone.36
In i,',* *i;glt v. Ui'f In his second trial, appellant raised several points which
were not decided in this court's prior consideration of his
case, one of which is that his subpoena was issued in violation
of Senate Resolution 366 of the Eighty-first Congress, Second
.,ssionL. It appears from the record that the subpoena was
is.,sued by the Chair mani of the Subcommittee. Senator East-
land. after conferring with Robert Morris. then Chief Counsel
for tlIe Subcoimittee. According to the testimony of Mr.
Morris, none of the other members of the Subcommittee were
consulted, with thle possible exception of Senator Jenner.
It is clear that the Subcommittee itself never decided, or even
considered, whether appellant Liveright should be compelled
to testify before it.
With regard to thle issuan ce of subpoenas. Senate Resolution
3J(; provides that "[t]he committee, or any duly authorized
subcommittee thereof, is authorized * to require by sub-
peinas or otherwise the attendance of such witnesses * as
it dleems advisable. In Shelton v. United States. 117 U.S.
App.D.C. 155, 160, 3127 F.2d 601, 606 (1963), we held that
this resolution places in the Subcommittee itself, and not in
any individual member, "the power aind the, re.-pons'4,ility of
deciding wlio shall be ca led." (Emplhasis in Shelton opinion.)
Thlie co-rt's opinion in Shelton noted that, by requiring all
3I id. at 605-07 ffootnotes omitted; emphasis, brackets, and omissions in original).
'347 P.2l 4T73 D.C. Cir. l(165).







decisions to coilm)el ait teldance of witn .w-,v-s to be made by the
Subcommittee, and not by an individual inelnber thelren f, tlhe
resolution served to protect the right of all persons to be free
from unne'essalry invasions of their privacy. Failure to
comply with the resolution \\;i held to be a valid defense to
a prosecution for contempt of Congnr-, um1er 2 U.S.C. 192.
Thus effect was -iven to the congressional concern, exxri'"-,-,,,
in the ,so lution, that proper procedures( be followed1 before
any person is coilmpelled to forfeit his fundamental right to
privacy.38
SIB1U(POENA AU'TIFoFZ.\TION AN) SCOPE
A properly authorized subpoena issued by a committee or a
subcommittee his the --ame force and effect as a subnoena issued
by the House itself.3'
Subpoenas issued by congressional committees must not exceed
the scope of authority delegated to the committee.
In 1' ted Statf.-: v. 1fter.on." the wxvitness was sulmollnlied to ap-
pear Ibefore the Select Cotinlittee o0l Lobbyinvi/ .\ctiviti,, awd to
produce documents of thle Civil R'its Conlr',-- 'elat ii:-: t o ( a)
the or'ani nzition and finalnc,- o' the Civil ,Rihits (COi|.-''* :.-,1 (b)
the activities of the Civil lights (Coln'("--. its ellllwtiler', officers.
directors, representatives, agents, ad empil)oees toer'ainin to leg-
islation. Hle appeared before thle committee, b1It Pref'i-.-.'l to prelod uce
the records. Hle w :i cited(l for onitelipt oif Co(ln r--m Tih tri-il court
dismissed the indictment -aa slpo-it/ anid he (Governnient ap!pealel.
The Select Committee on Lobbvyinl" Activities lpurp)orted to
act under House Ri.-olution 298 which a1itlho'ized it. ;0,ff'
a17ia, to ('condllt :: [an] inivestioatioin of * all lob-
byinig activities intended to influence * leilatiol. Be-
;aluse thlie Di -4'-ict Court tlioulhit, that the Federal Re'uIltion
of Lobbvin" Act, requiring. s1bmllissio1 of ilnfOlall/tio!) sill-
ilar to that, sought bv the Comnmittee lihere. was uncolst1it-
tional. it concluded that Iolls e Resolui ion 298 ws li,1wise
def,-,t ive.
That Resoliution was under attack in Inilite(l St'ates v.
Rumelv. [345 .S. 41, 7 ;. ( Ct. 5-. 515 (1953)1 re)enttlv
decided by the Suprenle Court after t 1, I)istvict Court's a(-
tion in tlie prcwnt (cise. TlIe Coumrt re'o01nize(l Ihie possible
conflict between the "power of Conoi'r'e-- to iliv otiite" -nf(nd
the "limitation iimpoled bv the First Amnlendlment' blt hi'ld
that "[aleommnodaition of tfl-" 'onftenldn" p)inciples : :: ::
is not called for until aIfter we [thie Si wprelle Court] 1 ave
constril"d tlpe -rop" of tile authority which tlhe I1'li'' of
Representatives Activities." The (,Court's construction. folowin.r tle view of
this court in that case. limited the plhra-' "lolbbyvin (tivi-
ties" to "lobbvin. in its colmIonlv c(c'eplted sen.-'," tl,'t is,
'repr'-,ntations made directly to tlhe Con-i.,.. its mebliers.
Sfd. at 474-75 (footnotes omitted: brackets and omissions In original).
nq McGrain v. Dauqherty. 27. U.-. 1."5. 159 (1927) : Tn re Motion to Qiua,4h ,ubiporna
and Vacate Rerrice, 146 F. Supp. 792 (W.D. Pa. 1956).
o 206 F.2d 1',." (D.C. Cir. 1 f;.".







or its committees,' 90 U.S. App. D.C. 382, 391, 197 F.2d 166,
177.." [345 U.S. at page 47. 73 S.Ct. at page 546.] And be-
cau-e, the Court found the information sought beyond these
limits of the Resolution. constitutional questions went un-
answered.41
Viewed in the light of Ruinely, it is clear that the instant
indictment rests upon a Committee subpoena that exceeded
the authority delegated by Congress to the Committee in
House IResol'ition 298. It is true that documents "relating
to (a) the organization and finances of the Civil Rights
Congress * perfaining to legislation" might include
matters pertinent to "representations made directly to the
Congress. it members, or its committees." But it is equally
clear that they are not so limited. An examination of the
slbl)poena in question discloses that the Committee sought.
nfer td;(I. documents relating to attemptsps or plans to in-
fluence, such legislation, either directly or indirectly."
The Supreme C'oiirt has ruled: "One should not be held
in contempt under a subpoena that is part eood and part.
baid. The burden is on the court to see that the subT)oena is
(ood in its entirety and it is not upon the person who faces
piunicihment to cull the good from the bad." [Bowman Dairy
Co. v. united States. 19.51, 311 U.S. 14. 221. 71 S.Ct. 675.
(79., 95 L.Ed. 879.1 Logic dictates and principles of equal
iiistiee compel application of the same rule to an indictment
for contempt which rests upon a conriresional iihpoena.42

N-EEDED INFORMATION
Several opinions have intimated that a legislative committee
may not use compulsory process unless it has reason to believe
that the witness to whom the process is directed has information
about the subject of inquiry.
In Barenblatt v. Urifpd states the Supreme Court thought it im-
portant to stress that:
[T]he record is barren of other factors which in them-
selves niqrht sometimes lead to the conclusion that the indi-
vidual interests at stake were not subordinate to those of the
atnte. There is no indication in this record that the Subcom-
mittee waz nttemntinu to pilloryv witnesses. Nor did peti-
tioner's appearance as a witness follow from indiscriminate
dragnet procedures. lnckini in probable cause for belief that
he rposze:p-ed information which might be helpful to the Sub-
'01M11 it tee.44
Thb tlhe: :. that conn'--sin)nfl commitfotees do not posses: "tho power
to examIiine priv't"p citizens iPldiscriminately in the mere hope of stum-
bHlin unon valuable information and to cite them for contempt if they
r4f1,(, to answer," was asserted earlier in United States v. Orman.4
41 i. at 4.24 (footnotes omitt1 hrackoted citatinnq added, other brackets in original).
42 1d. footnotess. omtttd : emphasis, brackets and ominisions in original).
4 'P.11 T' qe, 1Dr ,'Je)-)d).
*" Ta. at V'J.
41 Fnitr7i Rfate.-q V. Ormon. 207 F.2d 148. 154-55 (3d Vir. 1q53).
4a 2n7 F 2di 14R (.d Cir. 1i.52).








Il AS/H /fo UV. f/rid 1tat- SlIelto(n ha(ld ; convi'tet I ton-
telmpt of Coni'iv-s for failing to ;i'i-\ver ii;-tios Pit to ]lil )y te.
Intenmal Security Sublcotiimittee of the S.nate Judiciarv (Colliinil tee.
He contended that thile subpoena i--led to hint was invalid l;,:!ii-, the
committee nhad 0o -o.-l to cUill hiin. Te court of appi';:s exatindit'
1'. lim ited c: authoritV oi ll. 1 .% ,' i.ion of wliet..r it wV s ,..--1 V
t;i:d, the committee have s-''ie ir.-:n to believe that thel. witi ,-- 1adl
infornm'ttion pertinent to tlie ,l)jet n(ler e v .i ,a tiol. LItut it did not
d'-ide tlhe ;l"'-i oi b)"' al-c it foind that ", his e-, tIi., commi ,tee
S.,(d li.id slsi8cieunt X;.;,so1 to call tile witi,--
The Silprt i o Court reve -I the coviction. citil, a defect inII
t1e indict, ilent. SlwltoH -,-'as tlin retri, and :. 'aii e lie v-:i ,wiv.icte(,.
He agat ii) appe.iled. Tlie court of appeals t.i- tieic re' e ,-,',I i' ',l
co durt's ,'ci' 1n.4 '" ;.to, .) .'d in"iii r lie tje,tion thint t' i
.. .. i fil lj t o (1:, I tI -
inittee d(id not have p(1,0t l caii-' ii.de' lie i'irsi or lourthi A l A-
ment to subpoena him. and had introduced evident pirlportinH to -how
that he was the vicl til of the a,.,identa iul -,,oelailng of thle wi, per-
sonil. However, Since She1'ton a hane, }; pe, reporter, tile 1oit" '
lTrei ted the ,'--,', as a co *.1 ,t h, I ..\'. n tlie i Il'or1'Piu ii'n ctioi of ,res ..S alid the witenfle First Ainendni(ent freedomni as aiW ill-vi la1
and as a member of thie )ress. IBut it L:,'.:i re! '.d to i-,.'ide 0- ii1,-s-
tioni, 1,.-in._- its re"crsal and a.miittal of Sihelt'ii on a flaw in thn pro-
cedure followed in the authorize li on and i- 1lanee of thle -ID foMna.

'I I'-OR lTIT i .,UIAl\ i 1 II

Miner ihrreulaiti-,s in the form of a sufpoe!.i do niet invalidate
it where its meaning is clear to the person t:' whom it is dik-vtted.
In F..' v. UvIted Stat .,2- the v-arianrce between a s lubp(,poe;, p
teeum which directed Flaxer to plr.)( bc. cert-,in -ecol ,"s of tlie "'I-iited
Prof. -ional WVorkers of Anmeri '." andml tite indictent L whic h il ,',
refiisnl to produce records of tlhe "1 nied Iublic Worke: : of A I lerica."
of which Flaxer was l)I'esident ,-; ]!el d to 1 'I frivlolo-. esI *I- ,i ill
view of thle fact that he ad I Iled a tenti n to tlie error.
In Kamp v. U, ed'W Stfr s. a doimnent, call. a "sp)li, ',a\. which
directed the ,roea ..at ) o te 0-' tsmo _' i_.
Kamp * tobe and appear bef, re the Spec,'l Co"-!,itt. inv -
tigate Campaio-n Exp..nditui-, * thlien alnd there to t ifv *
and at such time pI .111uce and brin- with you tlhe l1,-.. i);pi]er. b lrc d
and documents of the Con-till ufonal Edw;tioi! T,.:! n. 1 1 *'"
was held sunf'cicit, d(,-.)ite tlie fact tl::,t, read literally, thlie I mu it
served directed the Se '* ,i ant t Ai rmsto ''i, the pa pe'!.

BLANKIT REt:UrAL TO COMPLY
A blanket refunsaJ to comply ,. Ifi ibe terms of a sulvnea du' .
tecurn whis'P calls for the production of recor'ds or ;o .'.e',!,.
wif-het ob.',.cti tl'n-t the suhbpoe:? is ove'bro--', has be 1- he -d
4- SO F.2d 701 (D.C. Cir. 19n6O), rev'd on othor grounds, ."ii U.S. 749 (1" .1-').
48 **z.') V.S. 749 W(1"1'2).
4, Shelton v. 'l,,itd Staft 227 F.2d MIl (D.C. Cir. 19nV.).
5l... F.20d ,21 (DC RCir. 195(1). vacatd ad rei n .'e ,. 2.-.4 P.S. '2," ,7 *' d,
27 P -*,' 412 (D.C. Cir.). rov'fl on other -rouni s :'-.. T R 147 (1' 1.'
51 176 F.2.. 61 1S (D.C. Cir. 1948). cert denied. .221" .S. .i-7 ( 1. ',,)






20


to be contemptuous conduct even though the possibility exists
that such records or documents might otherwise be protected.
In Shelton v. United States: 52
Mr. Slhelton was served on October 11, 1965, with a sub-
poena duces teenm.. issued a few days earlier by a Subcom-
mittee of the House Committee on Un-American Activities.
[A copy of the subpoena served on Mr. Shelton may be found
as an Appendix on p. 97.] The subpoena summoned him to ap-
pear as a witness before the full Committee or a Subcom-
mittee thereof and to bring with him and produce items spec-
ified in an attachment to the subpoena consisting of five num-
bered paragraphs. The first, four paragraphs specified books,
records, documents, correspondence and memoranda of named
Klan organizations which were in his possession, custody or
control, or which were maintained by or available to Mr. Sliel-
ton as Imperial Wizard of the organizations. The fifth para-
graph asked for the production of copies of Mr. Shelton's in-
dividual income tax returns for the years 1958 through 1964.
On October 19, 1965, Mr. Slhelton appeared witli counsel
in response to the subpoena at a hearing of the Subcommit-
tee which lhad issued tlie subpoena and which had previ-
ously been authorized by the full Committee to conduct the
investigation. At that time Mr. Shelton was asked to pro-
duce the documents called for in each of the five paragraphs
of the attachment. He refused to produce anything called
for in the subpoena. On October 20, 1965. Mr. Shelton again
appeared before the Subcommittee. This time hlie was di-
rected to produce only the documents specified in the first
four paragraphs of the attachment, which he refused to do.
He was not asked to produce copies of the individual tax
returns referred to in paragraph (5). M"ir Shelton gave the
following reason ms for his refusal to produce:
Sir [addressing the Chairman], I respectfully de-
cline to deliver to this committee any and all records
as requested by this committee under subpoena dated
October 7,1965, for that information is not relevant
and germane to the subject under investigation and
the same would not aid the Congress in the consid-
eration of any valid remedial legislation, nor is such
inllquiry within the scope of that authorized to be in-
vestigated by Rule IV [sic] of the rules adopted by
the 89th Congress, of House Resolution S, adopted
January 4, 1965.
I respectfully decline to turn over these documents
in question for the reason that I honestly feel that by
doing so it might tend to incriminate me in violation
of my rights as guaranteed to me by amendments 5,
1, 4, and 14 of the Constitution of the United States
of America.53
52*404 F.2d 1292 (D.C. *r. 96) cert. dnied. U.S. 1 (1969)*
53 Id. at 1294-95 (footnotes omitted ; brackets In originn1).







The Hoii-e cited Mr. Shelton only for his failure to produce
the iteiii in the first four paragraphs, which did not include
copies of his individual income tax returns * *.
The Court exanmiid the objections preseiited by the witness to the
Subcommittee for hii- refusal to produce tlie., documents. It said:
He apparently objected that the House of Re)presenta-
tives had never authorized an investigation of the Klan. The
record demonstrates the contrary. On January 4, 1965, the
Houi-e of the 89th (Congre-s adopted as its Rul's tho:,, of tlhe
House of the 88th Congress, with amendments not relevant
to this case. Rule XI. 18(1)) authorized the Committee on Un-
American Activities,
to make from time to ntine in\-''ti.,rations of (1) the
extent, character, and objects of un-American propa-
ganda activities in the United States, (2) the diffu-
sion within the, United States of subversive and un-
American propaganda that is * of a domestic
origin and attacks the principle of the form of gov-
ernment as giiaranteed by our Constituition, and (3)
all other questions in relation thereto that would aid
Congress in any necesary renmiedial legislation.
On March 30, 1965,. Representative Willis, Chairman of the
full Committee. introduced I[. Res. 310, which called for
the appropriation of a sum not to exceed $S5.0,000 in order to
p1iy the
additional expI('nss.t of conducting the investigations
authorized by section 18 of rule XI of the Rules of
th, House of Repre-enitatives, incurred by the Com-
mittee on Un-Americam Activities, acting as a whole
or by subcommittee, in invstigating the Ku Klux
Klan organizations in the United States. for the pur-
pose of aiding the Congr.es in the consideration of
any ne e.-:arv remedial legislation.* *
Onl April 14. 1965. after extensive del, ;ite, th is resol ution w\ a>. agreed
to by a House vote of 313 to 43.

Mr. Shelton nl1so objected th at the inforntion -,night was
not relevant to the inv,-tigationi. Agai we '!i1i11ot si'-thain
the objection. We have no basis for holdiingr. and Mr. Slhelton
supl)plies noe. tUlat the data requested with '.i-pect to thie
organization and operation of the Klan and it-. a--wciated
opira'aniz ,tios1 would not be relevant to an invest 2';ttion of tihe
Klan a' ho-i' o:.h',-, ,izations with tlie view to p,,-sible legis-
lh0 ion in I area of their activitie-.

He objected that turning over tlhe docmwiints "ni-hit tenid
to incriminate me in violation of mny rights ;t.-; 1:1 ranteed to
54 Id. at 1 29'; (footnotes omitted).
55 Id. at I '219. (footnotes omitted : omissions in ,rii ,;,il).






22

me by amendments 5, 1, 4, and 1- of tlhe Constitution. * *"
Tims, at the hea-riing iall constitutional objections which were
ada ;iC.d wvere solely in support of Mr. Sheltoii's claim of
possible -e Lf-incrifin'ation. At trial and now on appeal in one
respet le is monre specific; that is. lie relies iupon the First
A!Ijindii(..nt in c ntend(inl." that comnpliance with the sill)-
Po"1na vwoMln' have requirtcd him to fiirnish a listimn of every
moemiber of lthe organization, in violationll of tlhe freedom of
association ot nmei.)bers guaranteedd: 1)v the First Amendment.
HIe cites P.ates v. Citv of Little Rock. 361 U.S. .516. 80 S.Ct.
412. 4 L.1d.1-2 480, and NAACP v. Siate of Alhbnma. 357
U.S. 44. S.Ct. 1163, 2 L.Ed.2d 14,. As3suming that we
h'h',uld c":ider tis objection as having been made at tlhe
hearingg' we caZmiet sustain it as ablolvin.I1 Mr. Shelton of
conteilpt. In both jBcf,.tf and NAACP tlhe membership lists
wer., explicitly directed to be prod,1-xid. In tile present case.
i\,\ ever, the slub1pOea in this connection refers onlv to "unex-
ecuted formis relatii to a. pplications for menbershi,." Let us
asinime. however, tliat lists of members would be among the
other refrrds called e in the subpoena. The fact remains
tVi,'t ,Iv.. "ielton was not tried for contempt in n')t coml)lyilin
wi;,! a dlenianid for meieibership lists, as were tl'e parties
clhar,',i-zed in Y. I [CP and Blft.es. Even if Mr. Shelton would
not live bie'i in contempt for refiising to produtice member-
ship lists lhad objection to doing so been made and denied.
the b1nlan ,t ,'n,, c'r of his r0!f1.i . 1 i. prr:ci-,,1-,. ..thil.- rp-
qiv- 4.ed does not pr1',n- t such a basis for avoildi' contenipt.
In XA.. I[ P tlhe Cmourt explicitly distin_,uished People of
Sti' of New York ex rel. Bryant v. Zimmerinin. 2718 U.S.
63-. i9 S.Ct. 61,i 73 L.Ed. 184L involving" the New York Ku
Klii' Kin. saving in a respect especially ap)plicaible to our

There [in People of State of New York ex rel.
Bryant v. Ziinmemnan], this Court upheld, as ap-
plied to a member of a local chapter of the Ku Klux
Klan. a New York statute requiring any unincorpo-
rated association which demanded an oath as a condi-
tion to memlershuip to file with state officials copies
of its "* * constitution. 1v-laws. rilfles, regulations
and oath of miembl)ershlip, together with a roster of its
mmcnlerslip auld a list of its officers for the current
year." N.Y. Laws 12'," c. 664, 5".6 * [Tlie
situation before us is significantly different from
tlat in Bra)tf. because the organization there had
made no effort to comply with any of the require-
ments; of New Ycrk'. statute bt ratlier had refused
to firni0l tlie Siate with ,'71?/ information s. to its
local activitic... ;T7 !-.S. ;':t W -- ;;. S.C? at 11 73.
It, is q.iLe true here. as it was of the New York Klan in
rJh.,,t,, that Ir. Shelton "made no effort to comply with any
of the requirements [of the subpoena] but rather had refused
to fur,.nish I. ie Subcomi mitteo] with any information" re-







quested, thus catisi.n, his position to encounter the (lifficul-
ties expounded also in McPhaiul v. United States, 3(-4 U.S.
372. 81t S.(Ct. 13;s. 5 Il.E(1l.2l 136 and United State. v. Ix Nan.
339, U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884.
That the First Ameinlment obj.,c ion raised before the
Subcommittee doe- not help Mr. Shelton is emphasized further
by his failure at trial, although contending then that he should
not be required to furnish the membership list, to offer to
furnish anything, deinmot-:itin-," that his unwillingne(-ss to
comply with the requests of tlhe (Commnittee was not due to
unwillingness to sul)lfly any list of members which might be
in his possession or control.
In Ni A ('P the Court held that the State of A labama lacked
a sufficient interest in the membership of the National Asso-
ciation for the Advancement of Colored People to offset the
deterrent effect the furnishing of the lists would have on the
members' right of association protected by the First Amend-
ment. It was on this ground that the Court siistained the
right of the organiz:ation itself to refuse disclosure of its
members. To similar effect is B,,"x. No issue of tlii~ charac-
ter was su51(rested to the Subcommittee by Mr. Shelton. * *
As we have seen Mr. Shelton's Fourth Amendment objec-
tion was advanced only as part of his self-incrimination
objection. For this reason perhaps it could be rejected n
inadevuiate for the reasons we hereinafter give for holding
his Fifth Amendment objection unavailinz. But we do not
rest upon this ground. If Mr. Shelton felt he could refuse
compliance bei>use he considered the subpoena so broad a:s
to constitute an unreasonable -enrch or seizmle within tlihe
prohibition of the Fourth Amendment. then to avoid con-
tempt for complete noncompli,:mce he ',:ii; under obligation
to inform the Subcommittee of his position. The Subcom-
mittee would then have had the choice of adhering to the
subpoena as formulated or of meeting the objection in l~lit
of any pertinent representations 111:1 ,e blv Mr. Sh elton. Mc-
Phaul v. United States, .p, '. 364 T.S. at 379. 81 S.Ct. 1V-:
Ulnited States v. Bryan. ,2.;9a. 889 !.S. at 3,, 70 S.Ct. 7124
He simply failed to coopei'kae at all ain n inva-f ;_,1 1ir,- within
congressional authority, ch!)oosing neither to pro, 1uce anything
nor indee(l to o)iject 1)efore tC1 e Subcommittee to thle produc-
tion of any particular item. In tjis situation it (oe- not -r,,n
to us that we are '.1 qiii',d to dlecid(le eitherr tI e -vbpoena
was so by' ^i as to constitute an unla',vful -:irch or -ir- ire;
for tlhe conviction of Mr. Selton d( ,- pot r'-f upon 1is fail-
ure to respond !ecau -.', Ie deemed the sul)poenla to )be so broad
as to be invalid. Contempt wiech mi(rht be avoi-ld if vAilid
and timely ojection is made 11 d denied is not avoid4, )v
refusing to prollce what one lawfully could not b,' required
to produce if such obje,.ion had been made and deiveil.
1?,miii. and .J/'Pl //,7. both *pra.
The Suprenme Court has added. a coroll-ry to the rule of
tlie Bryan and .[cPhau1 cases. The rule that the defendant
must make his objections to the procedures of a congressional







committee when he appears before the committee does not
apply unless the ground of objection was known to the wit-
ness at that time. Yellin v. United States, 374 U.S. 109, 122-
123, 83 S.Ct. 1828, 10 L.Ed.2d. 778, followed by this court in
Liveright v. United States, 120 U.S. App.D.C. 379, 347 F.2d
473. Clearly this corollary to the rule is of no help to Mr.
Shelton. Moreover, we have no basis for concluding that the
scope of the ibpoena was so broad as to violate the Fourth,
Amendment. In this connection we advert to our discussion
above of the breadth of the investigation itself, limited as it
was, however, to the Klan organizations. The breadth of
the investigation points to the likelihood of relevance to it
of the records sought, and this in turn supports the reason-
ableness under thle Fourth Amendment of the demand for
thoemn. The investigation was not directed to any specific
activity of the Klan organizations. It was a general investi-
gation of their organization and activities in areas of legiti-
mate concern to the Congress.
Finally, as to the Fourth Amnendment, we may not assume
that to comply with the subpoena d(uwe.s e.-um. would have
been oppressively burdensome. The record is bare of any evi-
dence as to the quantity of documents involved. We have only
the remark of counsel in his brief that to comply Mr. Shelton
would have to empty the contents of his office.56

ISSUANCE OF SUBPOENA TO A WILLING WITNESS
There may be instances in which a witness, while willing to fully
cooperate with a committee, nevertheless, requests that he be sub-
poenaed for his own protection. A subpoena issued to such a witness is
often referred to as a "friendly" subpoena.
There do not appear to be any legal prohibitions against the is-
siiance of a subpoena to such a witness and such a witness should be
sworn as are other witnesses appearing before the committee.

SI'MM.ARY OBSERVATIONS ON (;ENERAL. CONGfRES!,IONAL PRACTICE
A committee or subcommittee should follow all relevant provisions
of its rules when issiiing a subpoena.
Issuance of a subpoena should lhe over the signature of a person
duly identified as having authority to sign in the relevant HoIue. Sen-
ate. or committee ruIles. or in the special resolution authorizing the
investigation.
Subpoenas may be served by any person designated bv thle person
over whose signature the siubl)poenla was issued. Such desi'niee may
include the Sergeant at Arms of the House or Senate. or a U'.S. MAir-
shal. or a clerk of the committee or subcommittee.
All efforts should be made to obtain personal service. Neither tlhe
statute nor thle rules of the House prescribe how a subt'oena ,hall be
served. The practice, however, is to follow the Federal Rules of C('ivil
Pro',odure (Rule 45) which require personal service on individuals.
Often., before ;I sun poenia witncs., is notified by telephone nnd an agreement reached as to the
56d. at 1298-1301 (footnotes omitted; omissions within paragraphs in original).







documents sought. In such situations an informal uniderstandinig con-
cerning their return i il is reaclied bet ween thie committee ani(l the witm--.
After service, the person appointed to serve sliould certify a re-
turn of service to be retained in the records of the comiiittee or siui-
committee as proof of service. If the personii to be serve( cannot be
found, the ind(lividual appointed to serve tlhe subpoena shoul(1 so cer-
tify for the record.
If a witness is in doubt as to what records are required bv a silb-
poena, or finds it unduly bur(lensomle, or feels tlie records are unre -
lated to the inquiry, he can so advise thle committee amnd remedy the
sitlIationY.
A subpl)I)oena d(wes tec geiierally is subject to the Fourthi Amendment prohibition against
unreasonable searches and seizire-. It must not be too indefinite or of
too wide a breadth in thlie things required to l)e pa rticularly de,.ribed.,"
Subpoenaed documents may be trainsl)orted to Washington Ibv tle
person serving the subpoena, or a committee may -,n( a repre-.1eita-
tive to s,.cure, them, and in some case. th-ey may be carried 1)v tile
witness himself.
A refusal of a witness who has been subpoenaed to testify or prod(uce
papers is grounds for a citation for contempt pursuant to 2 1.S.C.
192.
A witness who Ias been found to have altered or destrovedl sul)-
poenaed records may lIe cited for contempt of Congress 5' orl mayv be
prosecuted under the Federal statute relatinmu to obstruction of jut>-
tice (18 r.S.C. 10).0
In respect to return of subpoenaed documents, tihe general practice
of committees is to send them back to the owners thereof when tlhev are
no lon(rer neces-a ry for the purposes of the committee. Soi"letlmes com-
mittees make copies of documents .',,cured by subp))oena an(l ret1111rn
the originals immediately to the owner. Sometimes owners make cop-
ies of such docLuments and send thei-, to the committee. In such in-
stances, since the owner retains tlie originals, there is no necessity for
a committee to ret urn thle copies.

SUBPOENA OF CORPORATE AND ASSOCTATIONAL iI('.II>i
While a subpoena ad tet/fi(,t,lnfiUm must be served oni a corporate
officer personally, a subpoeniia dur(. fe(cum for corporate record is can
be served upon an officer, or a managing, or a general agent of tlhe
corporation. (Rule 45 of the Federal Rules of Civil P)rocedulre.)
Records of an institution or association, like tho:-l of a corporations.
which are kept in a representative rather than a pers.mnal capacity.
must be p)ro(lduced and may not ) be the subject of the Fifthli Amendlment
personal privilege against self-incriminations, even thlough pro-
duction of thlie papers minighit tend to incrTmimiate (their keeper)
personally.'
A subp)l)oena duc( -, tc(um may be directed to a meml.r of an exec'u-
tive boa rd of an association, since the directing officers of an uninii(corp)O-
.lmcl'lnul A. United Sttic... :',14 U.S. :;72. :12 (1960)
'0( Okluhoma i're.,s P'ihli.->linit Co. v. Wolliin .27 U.S. 10i. 20.S (1946).
:" .Jurtici V. MA% 1 CrCicken, 294 U.S. 125 (12 19::5).
w P'resser v. United .tidte.x. 371 U.S. 71 (1962) (mem.), aff'g 292! F.2d 171 (,;;i, Cir.
1961 ). relh. denied. 371 V S. !I -i (f.i;3).
61 See "Instances in Which the Fifth Amendment Assertion Agnin.,t Self-In.rimination
is In ti,.,d'cilble," infru at 63.







rated association have the same responsibility to comply with a sub-
poena issued by a congressional committee as if they were corporate
officerss.2
Subpoenas dawes tecum commanding the l)roductions of certain
records of an unincorporated association may be issued to all mem-
bers of tlhe governing body of the association.63 They may be issued
to thie executive secretary of an organization depending upon tlhe
ccinrcumstances.64
WITNESS FEES

2 U.S.C. 195(a) prohibits the Secretary of the Senate from paying
advance witness fees or advance travel and subsistence expenses to per-
sons subpoenaed by a congressional committee. House Rule XXXV
provides for payment of witness fees and trav-el expenses but it is silent
concerning the advance payment of fees and expenses. The House prac-
tice, however, appears to be the same as the Senate, namely that ad-
vance payments to subpoenaed witnesses are not generally made.
as U,,'ted States v. FIeishiman, 339 U.S. 349 (1950).
MBarsky v. United States. 167 F.2d 241 (D.C. Cir.), cert. denied, 334 U.S. 843 (1948).
SMcl'ihaul v. United States, 364 U.S. 372 (1960).











CONDUCT OF HEARING: PROCEDURE


CoM PLIANCE WITHIN CO)MrITIT':: RULES
In conducting hearings, it is important that the committee
comply with the procedures mandated in its rules. Some irregu-
larities of a committee investigation are deemed to be waived
if a witness does not make a timely objection at the hearing.
Others are not. It is difficult to reconcile the decisions but in
general objections to procedural matters are more likely to be
held waived if not raised than are objections to the authority
of a committee to demand answers to its questions. If at the time
of his interrogation a witness has no cause to know that the com-
mittee has failed to follow its own rules in the conduct of a
hearing, his failure to object does not constitute a waiver of the
irregularity.65
In 1958, in an investigation of so-called colonization by the Com-
munist Party in basic industry, one of the committee's inquiries
focused upon the steel ind istry in Gary, Indiana, where Yellin was
employed. Having information that hlie was a Communist, the com-
miittee decided to call Yellin and question him in public, rather than
in executive session. The committee subpoenaed Yellin on January 23,
1958. His attorney sent a teleorani to the committee's general counsel
on Thursday, February 6, 1958. asking for an exelltive .-e-sion be-
cau.se "testimony needed for legislative * purposes can be secured
in executive session without exposing wnitne.--o- to publicity." Since
the committee and general counsel had left Washington, I).C., for
Gary, the telegr:ti;i was answered by the committee's staff director.
His reply read:
Reurtel [Re your telegra ,ii?1 requesting executive .--
sion in lieu of open si-ion for Edward Yellin and Nichol.i-
Busic. Your request denied.
Richard Arens;, Staff Director
According to Congressman Walter, tlhe eliairman of the committee,
Mr. Arens did not have authority to take such action.
Yellin's counsel also sought to bring the matter to the committee's
attention when it commenced its public he ring on February 10. His
efforts to have the telegramnis read into the record were cut short by the
chairman, who was not inter-.ed in di,..iig their content. From
his testimony at trial, the Court found that he did not even know whiat
the telegrams said. And though the chairman asserted that the conm-
mittee would consider in executive session whether to mlake the tele-
g'raml Is a part of the record, the Court said that whatever action wa;i
taken was apparently without knowledge of the telegrams' contents.
Committee Rule IV provides in part:
( Yellin v. United States, 374 U.S. 109 (1.1.'.).
(27)
62-125-76-----3






28
IV-Executive and Public Hea.ings:
A-Executive:
(1) If a mnajor;ty of the Committee or Subcommittee, duly ap-
pointed as provided by the dle.s of the House of Representatives.
be'!eres that the interrogation of a witness in a public hearing might
endanger national security or unjustly injure his reputation, or the
reputation of other individuals, the Committee shall interrogate such
witness in an Executive Session for the purpose of determining the
necessity or advisability of conducting such interrogation thereafter
in a public hearing.

B-Public IHearings:
(1) All other hear'igs shall be public.66
The Court said:
The rule is quite explicit in requiring that injury to a wit-
ness' reputation be considered, along with danger to the na-
tional security and injury to the reputation of third parties.
in deciding whether to hold an executive session.
At the threshold we are met with the argument that Rule
IV was written to provide guidance for the Committee alone
and that it was not designed to confer upon witnesses the
right to request an executive session and the right to have the
Committee act, either upon that request or on its own, ac-
cording to the standards set forth in the rule. It seems clear,
from the structure of thle Committee's rules and from the
Committee's pract ice, that such is not the case.
The rules are few in number and brief-all 17 take little
more than six pages in the record. Yet throughout the rules
the dominant theme is definition of the witness' rights and
priv lees.
'* *
They show that the Committee has in a number of in-
stances intend(led to assure a witness fair treatment, viz.,
the right to advice of counsel, or protection from undue pub-
licity, viz., the right not to be photographed by television
cameras. Rule IV, in providing for an executive session when
a public hearing mi-ght unjustly injure a witness' reputa-
tion, has the same protective import. And if it is the witness
who is bein", pirotected. the most logical person to have the
right to enforce those protections is the witness himself.
The Committee's practice reinforces this conclusion * *
Weight should be given such a practice of the Committee
in construing its rules, Uf;ted States v. S.m;/h. 286 US ().
0. 76 L ed 9.-4. 9>S. 52 S Ct 475. ThD t the Committee has
entertained, nnd al\vays (loes entertain. requests for execu-
tive sessions reinfor'oes the ,'oiiIlnsion that. the Committee
intended in Rule IV to rive the individual witness a right
to some consilderntion of his efforts to protect his reputation.
It must he acknlowledSfed. of course, that Rule IV does
not provide complete protection. The Committee may not be
reriiired by its r'le, to avoid even unjust injury to a wit-
I" Id. at 114-15 (branckpts ind some emphasi. in original).







ness reputation. Assuming that the Coniimittee decid(s to
hold an exec'iitive e.'sion, the Coiniiitiee need do -o only
"for the purpose of determining the ,,c .,.;ty or' (tdtv..bi)l1t/
of conducting such interrogation thereafter in a public he:ar-
ing." (Emphasis added) By inclusion of thle word "neces-
sity" the rule may conteinl)late c1,t-:,, in which the (C'oiwiiittee
will proceed in a public hearing despite the risk or e\eni
probability of injury to thle witness' replutatioln.
That petitioner may be questioned in l1blic, eveI after
an execuitiv\e -e-sion has been held, does not mean. however.
that the Committee is freed from considering possible injury
to his reputation. The (Comminnittee has at least undertaken to
consider a witne.-s" reputation and tlhe efforts a witnes- makes
to protect it, even though the (Comlilliittee may in its disc're-
tion nevertheless decide tliereafter to hol(! a public lieariig.
The Committee failed in two() respects to carry out that under-
taking in Yell in's case.
First, it d(- es not a appear from (Coiigli.--ian Walter's
te-timony that the (Comvlittee considered( injury to tlhe wit-
ne-Ts' reputation when it decid(led against calling Yellin in
executive session[.]

Secondly, tle Coiimmittee failed to act 1pl)On p)etitio(ler's
express request for an executive se-sion. Tlhe Statf I director ,
who lacked tihe a(uthorri V to do) s. ),( ted i: 1: te Colmjittec's
si-. ed. TlInt )petitioner' Il(le'--i Ils ri'0(ie- t K (to Cm0it-
tee's counsel does not alter the case. The Co( miittee ,lid not
specify in Rule IV to whom such r',,quests should I)e a(ld-
dressed. But from other rules it may be inferred that tlie gen-
eral counsel is an alp)ropriate addr'.--ee.

Also it should be noted that the Staff D)irector's teletgralphe(l
response had the niisleading appearance of authority- anl
finality. The Chairman of the Conmnittee should not now 1 be
allowed to say that had petitioner disregarded tlhe r,-poise lie
received from the Chairmian 's Staff anld( instead reiIC, I'il his
request to ftle Chairman, "this could not have lhappeiie("--
especially when petitioner's coMisel tried to brin thlie matte,
to the attention of the Committee and was lii .-iely ci't oiff.
Thus in two instani'es the Comumittee failed to exer'ci-e its
discretion according to the standaards which Yelliln had n righ lt
to have considered.

Yelling might not prevail, even if the Commiittee takes note
of the risk of injury to his reputation or 1,' re(111uest for an
execute ive session. But lie is at least entitled to have tie Coim-
miittee follow it, riiule and give Iihiii coideiratioi aco( ,rdingii
to the standards it hias adopted in Rule TV. * *
Petitioner lias no traditional remedy. -i'cli as the writ of
lihabeas corpus upon whiich A(cc'ardi FV' ied '\fafe., ,,. I 7.
tcardi v. S-ha1g-,..,.. 347 I.S. 2;L' (1954)1 relied, by
which to redress the loss of his rights. If the C,,itmmittee








ignores his request for an executive session, it is highly im-
probable that petitioner could obtain an injunction against
the Committee that would protect him from public exposure.
See Pauling v. Ea.sfbl nd. 109 App DC 342. 288 F2d 126, cert
den 364 US 900, 5 L ed 2d 194. S1 S Ct. 233. Nor is there an
administrative remedy for petitioner to pursue, should the
Committee fail to consider the risk of injury to his reputation.
To answer the questions put to him publicly and then seek
redress is no answer. For one thiing,. his testimony will cause
the injury he seeks to avoid; under pain of periury, hlie.
cannot by artful dissimulation evade revealing the informa-
tion he wishes to remain confidential. For another, lie has
no opportunity to recover in danimages. US Cost. Art 1.
S6; Kilboum v. Thomps9on. 103 US 168. 201-205. 26 L ed
377, 390-392. Cf. Ten??c(? v. Brur1dhior. 341 US 367. 377,
95 L ed 1019, 1027, 71 S Ct 783. Even the Fifth Amendment
is not sufficient protection, since petitioner could say many
things which would discredit him without subl)jecting him-
self to the risk of criminal prosecution. The only avenue
open is that which petitioner actually took. lie refused to
testify.
As a last, obstacle, however, the Government argues that
Yellin's rights were forfeited by his failure to make clear at
the time he was questioned that his refusal to testify was based
upon the Committee's departure from Rule IV. Whatever the
mIerits, of the argument might be when immediately apparent
deviations from Committee rules are involved, it "has no ap-
plieation here. Yellin was unable, at the time of his hearing.
to tell from the actions of the Committee that his rights had
li,,,n violated. So far as Yellin knew, the Staff Director acted
as Congressman Walter's agent, announcing the results of the
Committee's deliberations. And so far as hlie knew, the Com-
mittee. when it initially decided to hold a public hearing, did
so in accordance with Rule IV. It was not until petitioner's
trial, when his attorney for the first time had an opportunity
for searching" examination, that it became apparent the Com-
mittee was violating its rules.
It may le assqmned tlihat if petitioner had expressly rested
liis refusal to answer upon a violation of Rule IV and the
Committee nevertheless proceeded, he would be entitled to
ii-, mittal, wvere he able to prove his defense. Otherwise, if
Yellin could lbe convicted of contemipt of Congress not-
witlistandini the violation of Rule IV. lie would be deprived
of the only remedy lie has for protectinQr his reputation. Cer-
tainlvy thle rio-hts created by the Committee's rules cannot be
tHlait illlsory.
Of co,,rse. should Yellin have refused to answer in the
mi..'koen but o-od(l-faithi belief tliat his rights had been vio-
;lted. his init;ike of liw would be no defense. TVatFOn. v.
7>,;7,- ,fu/c.. .5>4 U.S. 17,. 20o. 1 Led 2d 1273. 1295.77 S Ct.
11Z73, ) rl ,, v. T' ,W Srd ntaf.. 279 US 263'. 299, 73 L ed 692,
7''-. 49 S Ct 26g. Thit lie would at least he entitled to submit
tle correctness of his belief to a court of law.





31

Yellin should be permitted the s-line opportunity for judi-
cial review when he di-,overs at trial that his riglits have
been violated. This is espeiallv so wheii the Coummittee's
practice lhads witn,,--v- to misplaced reliance upon its rule-.
When reading a copy of the Committee's rule-, which mi-;t
be distributed to every witnc--s under Rule XVII, the wit-
ness' reao1,)lale expe:ctation is that the Committee actually
does what it purports to do, adhere to its own rules. To
foreclose a defense 1)ised upon th,,-, rules, simply because
the witness was deceived by the Committee's appcarai.n.e of
regularity, is not fair. The Committee prepared the grliniiid-
work for prosecution in Yellin's c.a-c meticulously. It is not too
exacting to require that the Committee be equally meticulo'is
in obeying its own rules.67


The number of members who must be present to constitute a
quorum for receiving testimony can generally be ascertained
from the committee rules.
A witness appearing before a committee has the right to object
to the lack of a quorum.."

PIRO ISECUTION FOR Pi.1JTUI;Y
It has been held that since the presence of a quorum is an
essential element for a successful prosecution for perjury it is
not necessary that a witness object to the lack of a quorum at
the time of his appearance before the committee, and the absence
of such a quorum is fatal to a successful prosecution.69
In March 1947, the House Committee on i- '.,: ';tion ;w'! Labor
was conducting a hearing on prop(-',il amendments to the National
Labor Relations Act. Christoff'el appeal lred 1 'fore the committee. and
under oath was asked a number of qu,,-tions direct,", at his political
affiliations and as-He.iatioJ-. He specifically denied bei', 1, a Co, nnai.-i-t
or a Communist syvmpatiliizr. As a result of t i. -, answers lie was
charged with anl convicted for perjury under Sr.-tion 22-2501 of the
District of Columbia Code:
22-2501 * rt .ju.~_. -Subor1,),'o of p ijury'y". E,',/y I ,sonl
who, having t,'; an oath or aj' rm,'i/;on befo, a (,ipe',v ,.' tribune ,
offcer, or p (l./on, ;;l. ay e,'n.S. ;, ,,.hich the law antho' ,,tii s"'.h oath
or affirmation to be ad'liuntist( / c-, that 1/,' ir,'ll t, *s//y, d(leclare, (1, pos,
or certify truly, or that ,iny Uit..n test.'ioay?, d, (.,i',.t;'on. del,,/i-
tion, or ce rtfcate by ;''n .sO.),blrbed is friu,, wil/fidly al (',, ,',. to
such oath or oith'lotufioi sc'.'es or .suibscribcs( ay Inateral 1,,,'er
which he dos not bl'e'1 to b,- triic. shall be guilty of 7'jifry andw
671 Id. at 11.',-24 (footnotes omitted).
6 United States v. :,o."'v;. ::.'i U.S. .'":.. ,..2 (1'.1.,). But see Cp ristoflc v. U i.', States,
3.1.; U.S. 84. 88 (1948). "[T]he power to raise a point of no quorum ai'p,'ir to be
limited to members 4f the committee."
9 Chri i to i flf v. [United ',tte:, :";- U.S. 84 (i4f,).
In Voitril States v. Reinecke, F.2,1 (D.C. Cir. i!977.), the court of npI.'1< de1arI.,l
that the failure of the Senate Judiciary Committee to publish its rules in thi. ('.or..-
sional R .nrl. as required by the rules of the St.mnti' (2 U.S.C. 190,i 2), invaaiLi.t,'d :i
one-man quorum rule which hi;l been adopted by the committee.
The prosecution. rnlyinz- on the one-man qiioriuni rule. h:il shown only thi. presence
of one Senator at the time the false statements were iiiale. The court held that this i.I
not prove the presence of a quorum o.f the committee.







any f r.son conrieted of perjury or subornation of perjury shall be
puti;shcd by hnIprisonment i'n the penitentiary for 'not less than two
nor more than ten years70
*
Christoffels major contention before the Supreme Court was that:
[T]he committee was not a "competent tribunal" within
the meaning of the statute, in that a quorum of the committee
was not present at the time of the incident on which the in-
dictmente was based. As to this, the record reveals the follow-
ing: the Committee on Education and Labor consists of
twenty-five members, of whom thirteen constitute a qc1uorulm.
At tlhe. con miiceientnt of the afternoon session on Saturday,
March 1, 1947, shortly after two o'clock. a roll call showed
that fourteen mnenimbers were present. Petitioner's testimony
-tarted(l some time after four o'clock. The responses said to
constitute offenses were given just prior to five p.m.
Evidence was adduced at the trial from which a jury might
have concluded that at the ti'e of the allegedly perjurious
answers less than a quorum-,i: few as six-of the committee
were in attendance. Counsel for the petitioner contended vig-
orous1ly at the trial, on appeal and in this Court that unless a
quorum were found to be actually present when the crucial
questions were asked, the statutory requirement of a compe-
tent tribunal was not met and that absent such a finding a ver-
dict of acquittal should follow.
*
The Constitution of the United States provides that "Each
House may determine the Rules of its Proceedings." Art. I,
5, el 2, and we find that the subject of competency, both of
the House as a whole and of its committees, has been a matter
of careful consideration. Rule XI (2) (f) of the House of
Representatives reads in part. "The Rules of the House are
hereby made the rules of its standing committees so far as
applicable. * Rule XV of the House provides for a call
of the House if a quorum is not present, and it lhas been held
under this rule that such a call, or a motion to adjourn, is the
only business that may hIe transacted in the absence of a
quorum. IV Hind's Precedents 2950; Id. 29R8. See Id.
.: 20'4. 2930; VI Cannon's Precedents 653; Id. 680.71
*
Witnesses in committee hearings cannot be required to be
fimuiliar with the complications of parliamentary practice.
Even if they are, the power to raise a point of no quorum ap-
pears to be limited to members of the committee. We have no
doubt that if a member of the committee had raised a point
of no quorum and a count had revealed the presence of less
thln a majority, proceedings would have been suspended until
the deficiency should be supplied. In a criminal case affecting
the rights of one not a member, the occasion of trial is an
aplpropriate one for petitioner to raise the question.
lori,,-; nffrl v. U'nitrd ,tft.fr'. 338 U.S. R4. 85 fn 2 (1948).
71 Id. at S5-S7 (footnote omitted ; omissions in i.'inal).







Congressional practice in the transaction of ordinary .legis-
lative business is of course none of our concern, and by the
same token the considerations which may lead Congres, as a
matter of legislative practice to treat as valid the conduct of
its committees do not control the issue before us. The quc.-
tion is neither what rules Congress may e4talish for its own
governance, nor whether presiumiptions of continuity may I)pro-
tect the validity of its legislative conduct. The question is
rather what rules the House hias established and whether they
have been followed.
We are measuring a conviction of crime by the statute
which defined it. As a consequence of this conviction, peti-
tioner was sentenced to imprisonment for a term of from two
to six years. An essential part of a procedure which can be
said fairly to inflict such a punislhmnent is that all the elements
of the crime charged shall be proved l)eyond a reasonable
doubt. An element of the crime charg,,ed in the instant indict-
ment is the presence of a competent tribunal, and the trial
court properly so instructed the jury. Tlhe House insists that
to be such a tribunal a committee must consist of a quorum,
and we agree with the trial court's charge that to convict, the
jury had to be satisfied beyond a reasonable doubt that there
were "actually and physically present" a majority of the
committee.
Then to charge, however, that such requirement is -;itisfied
by a finding that there was a majority present two or three
hours before the defendant offered his testimony, in the face
of evidence indicating the contrary, is to rule as a matter of
law that a quorum need not be present when the offense is
committed. This not only seems to us cont r .iry to the rules
and practice of the Congress but denies petitioner a funda-
mental right. That right is that he be convicted of crime only
on proof of all time elements of the crime charged agai nst him.
A tribunal that is not competent is no tribunal, and it is un-
thinkable that such a body ca ii be the instrument of criminal
conviction.7-
PROSECUTION FOR CONTEMPT
If a witness fails to object to the lack of a quorum at the time
of his appearance he can not later raise that objection in a prose-
cution for contempt of Congress.
Since the presence of a quorum of a committee is not an essen-
tial element of a witness' willful default in producing documents
called for by a subpoena duces tecum, a witness who fails to
object to the absence of a quorum at the hearing waives that
objection.
In [lited States v. Biran 7 the Supreme Court noted:
The defect in the composition of the Committee. if any,
was one which could easily have been remedied. But the Com-
mittee was not informed until the trial, two years after the
72 rd. at 88-89 (footnote omitted).
73 ::19 U.S. :'.21 (1j50).






34


refusal to produce the records, that respondent sought to ex-
cuse her noncompliance on the ground that a quorum of the
Committee had not been present. ": To deny the Com-
mittee the opportunity to consider the objection or remedy it
is in itself a contempt of its aut hority and an obstruction of its
processes.74
*
The C/ristoflfel Case is inapposite. For that decision,
which involved a prosecution for perjury before a congres-
sional committee, rests in part upon the proposition that the
applicable perjury statute requires that a "competent tribu-
nal" b)e present, when the false statement is made. There is no
such requirement in R.S. 102 [Contempt of Congress, 2 U.S.C.
192] * it refers to the wilful failure by any person "to
give testimony or to produce papers upon any matter under
inquiry before ** any committee of either House of Con-
gress," not to the failure to testify before a congressional com-
mittee. And the fact that appearance before a committee is
not an essential element. of the offense is further emphasized
by additional language in the statute, which, after defining
wilful default in the terms set out above, continues, "or who,
having appeared, refuses to answer any question pertinent
to the question under inquiry, shall be deemed guilty of a
misdemeanor* **." (Emphasis supplied.)
It is clear that R.S. 102 is desi'_ned to punish the obstruc-
tion of inquiries in which the Houses of Congress or their
committees are en.affed. If it is shown that such an inquiry
is. in fact. obstructed by the intentional withholding of doc-
uments, it is unimportant whether the subpoenaed person
proclaims his refusal to respond before the full committee,
sens a telegram to the lcha irman, or simply stays away from
the. hearing on thel return day. His statements or actions are
merely evidence from which a jury might infer an intent
to default. A proclaimed refusal to respond as in this case
makes that intent plain.75

ONE MAN SUBCOMMIrTEE
Senate committees, pursuant to their rule. may properly estab-
lish one man subcommittees and the courts have ruled that such
a subcommittee may validly constitute a quorum for receiving
testimony. Rule XI 2(h) of the House provides that no less than
two members may constitute a quorum for taking testimony and
receiving evidence.76
EXECUTIVE SESSION
The rules of both Houses provide that a committee is to inter-
rogate a witness in executive session when it determines that
such testimony may injure his reputation or the reputation of
another."
7<4 Id. at .' .
T I'd. at 329-M (emnhnsli in original).
7 Hotie Rinlo XI 2(h). 94th Con.-. (1975) : Senate Rule XXV 5(Vh ; ?m.qpnkx v. Unites
State. 20. F.2fd 54 (D.C. Cir. 19.M2)2. rev'd on othPr vroundc 4f U.S. 190 (1955).
77 U.S.C. I 190a-1 (b) ; House Rule XI 2(k) (8), 94th Cong. (1975).







Although a wvitnes.; may not demand a closed hearing, the
failure of a committee to follow its own rules, which i.ave the
witness the right to have the committee consider whether to
question him in executive session because of possible injury to
his reputation, was held to be sufficient grounds for acquittal
in a prosecution for contempt.
In Ye7;1 v. Undtcd S'tat, 's IUle IV of thle 1Iouse Colmmlittee on
un-Auriicailln Ac.\tivities provided(l th at lthie com niittee -1ould inter-
rogate a witness ill executive session iif a llmajoritV of lthe colmnlittee
or subcommittee believed that intern g:-.( iol at a 1)pu1 )lc h1: Irin migllit
unjustly injure his reputation, Yellin's attorney lad sent a tIlegI:n
to the committee's generall c', :1i-tl 1(P41 jii tin an e.eciitive all --Cion be-
cause "testimony needled for legislative : ::: 1 )O-e,- C;i1 be se-
cured in executive Session without exposing tlhe witn'-- to publicity." T
This request was- rejected 1) die cori,,nitfe's t' director without con-
sulting the committee or ils chaii-i: it. Thie committee haId p)reviously
decide 1 to 1 ear him in a public I.-f' iob. witi wholit ,osideration of tlie
possibility that thle w i n--; reput at ion migit ,be injured fli' el v. The
Supreme Court, held t1r t while tlie witns ':Iuld nlot demandd a cl,,.d
hearing, the committees rule( did give him a right to have the com-
nit tee consider )posi)le injury to his repltationu in determining
whether to question himin in an executive .-.-ion or at a public hlarin,.
Because of the committee's failure to follow it- own ruIles in this
matter, Yellin's conviction for contempt of Congr.- wasv rever-,.
Where such a rule exits. a Federal li-frict court has hlield tiat.
even though the witn.' hlad 'not re(,|Ues!ed an executive :-. ,-ioll, the
committee must, in determining wheth-,r to hear the witnc-- in public
hearings, con-ider whether a public Iiearing could injure the witness'
reputation.80
BROADCA- I- NG OF Co3i IITTEE ITTi-'.\IiNGS
Both tOe House -.-1 Senate have rules permitting the broad-
casting of some committee hearings.
fHov.qe Rule [XI 3(f) (2),9.th Coin.. (1,975)7
No qetness s(i,'(c(d w/th a / )p >i a 1 (, (-lii com 't; e ,s.ic ll s :b I., re-
qw,, ,d aqd,.',, h is or 1ir ;- ;l to be /)pofo/rph (ed (it (/. IM/ h,(iH 'i or
to give, ,.',len.. or fcs'thinonvy whle tle bi'oad(as,if/ of 1tat haari .f,
by radio or teivc.,on, in ', ''ii ,,1,uct d. It the /,. '/?tc< of ai70 8suc
I'itness whbo do(-0' 'fot ?'ish to be .,.i.d,'1 !fd to / ad;o, 7%'h *'A f.'., or still
photo graphyf coerage- /. 117., 8s sh(d17 l be cor, /,. (ltw all ... ]Ophoi'0:
v.sed1 for cor, iwge turned off.
Senate Rule [2 U.S.C. 190a-1 (b) I
* Whevn '_' (r any hearing is opc. to the public, that fn'',rhg may
be broade.. 's by radio or telv.'ion or both, i.,t, such rues l b"'
om.i;'ttee may adopt. Each Corn miht' may by its o.'n rules stablsh
proved,/ (. s provl.'hig for the broad casting of its h, /rinhys.
Neco-,.'/y of Raising Objection
Where it is the practice of a committee to honor requests of
witnesses that they not be televised during their testimony, a
7 374 U.S. 109 (1963).
79 Id. at 111.
80 UnL'inl States v. Grumman, 227 F. Siupp. 227 (D.D.C. 1;'74).








witness who neither objects to the televising of the hearing nor
requests that his appearance not be televised, cannot raise the
objection for the first time in his trial for contempt.81
Duty of Witness To Aswter Question, at a Televised Hearing
Two district courts have reached opposite conclusions as to the
duty of a witness to answer questions at a televised hearing. One
found a witness not guilty of contempt on the ground that the wit-
ness was justified in refusing to answer questions in the presence of
television cameras, newsreel cameras, news photographers using flash-
bulbs. and radio microphones in a crowded hearing room which, the
Court thought, necessarily distracts any witness to the point that he
might say today something thliat next week hlie will realize was
erroneous.82
The other held that the conduct of congressional hearings is within
the purview of the Congress and that the courts have no right to
dictate either the procedures for Congress to follow in performing
its functions, or the composition and conduct of the persons and
1)araphernalia admitted by Congress to its hearings. There is a pre-
sumption that Congress, having ventured to act pursuant to its
constitutional authority and in furtherance of its investigative func-
tions, has properly exercised that authority and properly performed
those functions. This presumption is not rebutted by anything less
than competent proof that (1) defendant was actually depwived
of his normal faculties to respond intelligently with clarity and accu-
racy, (2) this deprivation was the reasonalple resiilt of conditions
caused, or affirmatively allowed to exist, by Conriess. and (3) such
conditions were unreasonable and unwarranted.83
The presence of microphones, television cameras. and )photographers
has been held not to constitute such lack of proper decorum at the hear-
ing of a congressional committee as to render the committee an incom-
petent tribunal, before which the giving of false testimony would not
84
constitute perjury.4

PRIVILEGES WHICH MAY BE EXTENDED TO A WITNESS
A committee may, pursuant to its own rules, extend to a witness
such privileges as it considers appropriate.

PRIVILEGE OF A WITNESS TO MAKE A PRELI.MINA.RY STATEMENT
The refusal of a committee to permit a witness to make a state-
ment before he is sworn,85 or to read a prepared statement during
the hea-ing,86 does not excuse the witness' refusal to be sworn
or to answer questions. The committee, not the witness, must
determine the procedure to be followed in the investigation.
$a Fartman v. unitedd .tate.q, 290 F.2d 460 (9th Cir. 1961), rev'd on other grounds 370
T'.R. 724 (1962'.
"2 f'n;tfd Rtates v. Kleinman. 107 P. Supn 407 (D.D.C. 19-52).
t United xtqtr.e v. Hintz. 1.3 S iiunn. R25 (N.D. 111. 1961 ).
84 United Stntes v. Moran, 194 F.2d 623. 627 (2d Cir.). cert. denied. .43 UT.S. q965 (1952).
SEi.ler v. F-nitpd States, 170 F.2d 273 (D.C. Cir. 1948), petition for cert. dismissed.
3.18 U.S. 8RI (1949).
Towrnsend v. United States, 95 F.2d 352. 360 (D.C. Cir.), cert. denelpd. 30.3 US. 664
(193S).







Even if the statement is a lengthy lep.il brief in support of oljec-
tion to the authority of the committee to conduct if: inquiry, denial
of the opportunity to re;id it does not warrant a refii:;!1 to a w-'ver
when the witness \;s given adequate opportunity to state his
objections.
In Barenblatt v. Uri 'fd St,,''<. the court -i:tid
We cannot, within the limited power of a court to reviHw
the procedures of a cou.i,-- oiial committee, i -i1t tlait
such a committee interrupt its proceedings for (etaileI
examination of a lengthy attack on its power to ask a ques-
tion or to make any inquiry at all. Certainly the subeom-
mn ittee lI d the right to insist that olbjecl ionlls be c.',t in a
reasonable form.88
240 F.2d S75 (D.C(. Cir.), vacaled and reizaindod, .:-,4 I.S. !'f.:1 (I957).
88 Id. at 879 (footnote omitted).














APPEARANCE BEFORE CONGRESSIONAL COMMITTEE IES
A witness summoned to testify before a congressional commit-
tee who fails to appear or who having appeared leaves without
committee approval or who refuses to be sworn may be found in
contempt of Congress under 2 U.S.C. 192, which states:
Every pr,.soji, who iii',.,g been summoned as a witness by
the authority of ;/h, '/ I .Hoas, of Co,,i,, s. to y'' .i/,';,,1iioi/
or to produce pap, upon any matter und( inquuiy befo,'.
either IHouse, or ,ny ,Cjoint committee established by a jo'it
or concurir. t r'..olution of the two Ilov.., of Cowr,...*. or
any)/ (,.o,1;tfee of either House of Cong'vx.. willfully makes
default, or who, hca',;ii apple','',. ref',s. to ,,,,wc'r any
Wes/;on 1,,rt';,ient to ti,, question under inq,'//.y, shall be
deemed guilty of a n,.dei, ,,or. punuishable by a fine of nof
more thlitn $l)000 nor less th,,, $100 ,',,,,/ umprisoni, lt n a
common .'~"' for not ,.., thi,' one month nor more th,il,
twelve months.
FAILI'mI To ArrPPEAR
A wii:ess who has hbecn properly summoned to ,es-tify or pro-
duce papers before the H1...s. or Senate or any congressional
committee and who fails to appear is chargeable with willfully
making default under 2 U.S.C. 192.
A witness summoned to testify before the Senate r.;h1 Currency Committee had come before the committee but had refused
to be sworn and to testify. When lie \\ns in(licted for violation of
2 U.S.C. 192, hlie moved to dismiss the indictment on the ground that
there was a fatal inconsistency in the charge, which alleged that he
had "come before" the committee 1)p 1 ant to sunimmons, and "willfully
did make default," and that he refii,-d "to be sworn and to testify'
but which did not allege that hlie refused "to answer any question
pertinent to tie qu*m'I ion under inquiry."
The witness took the position that thle "willful default" and "re' ',sal
to answer" branIches of the statute defined distinct ofYen,-, and that
activity coming under one must ;p.so facto be deemed nonviolative of
the other. lie argued that, having app,':.red before the committee
pursuant to a subpoena requiring lhim to appear and titifv. he could
be chareied only with refua-l to answer pertinent q,,,.-Aiol)s rather
than with willful default. Tle further argued that his refli-,il to be
sworn and to testify vwas not a refusal to answer pertinent questions.
The Court did not adopt this interpretation of tlie I -atiut -. Instead it
interpreted 192 to mean that:
The "def:iult" which, when wilful, violates the statute,
refers to a failure "to give testimony or to produ''lc papers"
upon a matter under inquiry before thie ConQre- or its
(:'i )








Committee. Such default can as well occur by refusal to tes-
tify as by refusal to appear. The statute proscribes every
wilful failure to comply with summons, not merely the failure
to appear puirsuant to suminons.89

ATTENDANCE AT COMMITTEE HEARING
Where a witness appears before a committee and thereafter
leaves without committee approval such departure constitutes
willful default under 2 U.S.C. 192.

WITNESS' REFUSAL To BE SWORN
A witness" refusal to be sworn has been held to constitute both
willful default9o and a failure to answer pertinent questions
under 2 U.S.C. 192.91 Either is punishable as a contempt of
Congress.
A witness' refusal to be sworn has also been held to preclude
raising, in defense to a charge of contempt of Congress, an objec-
tion that the authorizing statute or the resolution creating the
committee failed to provide standards by which the pertinency
of questions which the witness refused to answer could be
determinedd2
Unitcf'I States v. Hint:. 193 F. Su>p[. 325, :27-21; (N.D. 111. 1961).
90 I.'.lr v. United State.s. 170 F.2d 273 (D.C. Cir. 1948), petition for cert. dismissed,
3.S U.S. s (1949); LUnitel States v. Hintz, 1!3 F. Supp. ,25, 32. (N.D. 111. 1961)
United Stftrs v. Lilidy. CriniDial No. 74-117 (D.D.C. 1974).
9 United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied. 91 S. Ct. 2253
(1971) ; Toi:n.,cnd V. U itted Stites, 95 F.2d 352 (D.C. Cir.), cert. denied. 303 U.S. 664
(1'J:").
92 United Suites v. Josephson, 165 F.2d 82, 87-88 k2d Cir. 1947), cert. denied, 333 U.S.
838 (1948).











CONSTITITI I()NA, 14 RIGIITS OF WITNESSES"


FIRST A MEND.I['NT
Congress shall mnake no lar re./pe,;if! ,,/ e-fwblishm,',it of ,.l;Ygion.
or pro1i;b;iting the free ex,,ci..e fli,'cof; or abridgigq the f',Iedom of
.peeoch, or the press; or the right of the people aca',bly to a(,s'ible,
and to pef it;'on the Go', n uii lft for a rcdri, x. of y ,',,,.,.

BALANCI NG TEST
First Amendment rights are not an absolute bar to congres-
sional inquiry. The Supreme Court has held that the legislative
need for the information must be balanw:ed against the personal
interests of the witness.
In Barenblatt v. 1 ited ,ftt..'a< the Supremne Court said:
[P1ursuant to a subpoena, and accomlpianiiied by counsel,
petitioner on J Xute :S. I''I. appeared as a witne-. before
tihl- conrTessIWi(al Su ,iiICOlit [e. A'ier answering a few pre-
liminary questions and tv,-tifyinio that he had been a gr.ad nuate
student a'nd( teIc. iiliog fellow a' tlhe nivers-itv of Michigan
from 1947 to 19O50 and ;.n instriictor in psycvholorv at Vas-;ir
College from l .950 to shortly before his a)ppear,,iice before
the Subcominittee. petitioner objected gene rally to the right
of thle Subco.immiittee to inquire into his '"political" and "re-
ligious'" beliefs or any "otlier p)e-.-on)al anii private affairs"
or "associational activiti,-." ulpoln roundss -,.t fo[(rh in a
previously prepared memoraindun whichl he was allowed
to file with the Subcommittee. I Footnote 2I tOle xvwor(ds of
the panel of the Court of Allppe)als wihich.1 fi -. Lead the
';,-: this memllorIandu "ci1 best 1ew dh-.ril :'d :s len, ,1 t 0v
legal brief attacking thi e juris(ld ''Im of thie (com)1lltte t(
ask appellant any questions or to cod('o ictt an'v iinjuiiryv at
all, based on 1 1,'First. Ninth a(nd Tenth Anend.n- enit }lie
prohibition aa inst bills of attaindler, andl Ihle d,,trii e of
-epai actionn of po'",rs." l0) App I)(. at 17. n 4. *JI2 Fi2(. at
879, note 4] Tli.'.:ifter pletitioner sI4'0liiFallv .., lined to
answer( eaeh of the following live lest ions:
Are yoU now a mtiember of the (o('lmimiunist Party ?
Have voU ever 1:, ,' :i me;oi'tr of tlhe (C ommnnist Part ?
Now, yoU have stitedl that you ktew [, Inne omlitted] I)id
YoU know [him'] a a Inell .'r if t(he Co(mnmiuuisr Partv *
W Vere YoU ever a menmbie orf tlie IIal.'eic ('luib of thie ( 0m1-
n i-t4 Part v w]ii le at the 1 ni versily of Michi,_an ?
Were vYou a Imember wille a student of thle 1F -ive-itYv of
Michigan (Coi oncil of Arts. S('i,.l ict', aamd Pro fessionsi
93 ":',;" U.S. 109 (1959).
( 11 )






42


In each instance the grounds of refusal were those set
forth in the prepared statement. Petitioner expressly dis-
claimed reliance upon "the Fifth Amendment." 94
The Court upheld the witness' conviction for refusing to answer
the quest ions. It said :
Uindenil)vy, the First. Anmendlient in some circumstances
protects an individual from being compelled to disclose his
,9sc.iational relationships. However, the protections of the
First Amendment, unlike a proper claim of the privilege
against self-incrimination under the Fifth Amendment, do
not afford a witness the right to resist inquiry in all circum-
stances. Where Fir.i-,t Amendnliut rights are asserted to bar
goverjimental interrogation resolution of the issue always
involves a balancing by the courts of the competing private
and public interest at stake in the particular circumstances
shown. * 95
The first question is whether this investigation was related
to a valid legislative purpose. for Conaress may not con-
stitutionally require an individual to disclose his political
relationships or other private affairs except in relation to
such a purpose. See Watkinm v. U,,ted S'tates [354 U.S. 178,
198 (1957)].
That Congress has wide power to legislate in the field of
Communist activity in this Country, and to conduct ap-
propriafe investigations in aid thereof, is hardly debatable.
The existence of such power has never been questioned by this
Court, and it is sufficient. to say, without particularization,
that Congress has enacted or considered in this field a wide
range of legislative measures, not a few of which have
stemmed from recommendations of the very Committee
whose actions have been drawn in question here.96

ASSERTION' OF FIRST AMENDMENT RIGHTS AS A LAWFUL EXCUSE FOR
REFUSAL TO ANSWER
Rights protected by the First Amendment have frequently been
asserted as a lawful excuse for refusing to answer questions asked
by- concgrresional committees. However, there have ')een no prosecu-
tions for contempt of Congress in which a First Amendment defense
has been recognized as a legitimate excuse for refusal to answer an
otherwise lawful question put by a congressional committee.
Stamtcr v. WTi1is 9 is the only case which has sustained a witness"
claim of First Amendment rights. In Sa'tamler. plaintiffs brought a
declaratory judgment action against the Chairman of the House
Un-A.mcrican Activities Committee challencinr the constitutionality
of the. authorizing resolution of the committee on the grounds that
the resolution had a "chilling effect." upon plaintiff's exercise of First
Amendment freedoms. The court sustained plaintiffs contention or-
dering to trial a civil action brought by subpoenaed witnesses seeking
4 Id. at 113-14.
. Jl. at 1 2;.
"'d. 127 (footnote omitted).
9 415 F.2d 1365 (Tth Cir. 1969), cert. denied, 399 U.S. 929 (1970).







to have the authorizing k.-olution declared unconstitutional. Other
cases brought b-- s5bpoenaled witn, ...., se,.kiY injunlctive anmd dleclar-
atory relief against congr01e-iollal coml1itit''s on First Ahmeindment
grounds have denied the req(:''-tcd relief but lave ini(lic.alted(l that a
court miight i1t1ervene to protect First Amendment Freedomis under
more compelling circuminstan ices.
The de'.,ision in Stab;iie' has been effectively overrulled oil otiier
grounds by the recent Supreme Court dee i-ion in lEastland v. United
8talt. ServwC, m, i's Fii.,id In Lastlaid. the Court held ;fit the
Speech or Delate Clause of the Con littution generally precluidles
suits challenging the validity of subpoenas, i4-iied by congre--io nall
committees which allegedly violate a wit 1:.'5 First Amendrent free-
doms. As a result of the Eastland decision, a \ it ness d(esirino to chal-
lenge the validity of a coungressional slubp)oena ml!-t rai-e his objec-
tions in a subsequent criminal prs.e icutionii for contemlipt of (Coi-.-..

MOTIVE FOR INVESTIGATION
In support of the claim that rights under the First Amendment
would be infringed if they were compelled to testify before a
congressional committee, witnesses have sometimes argued that
the committee's real purpose was not to obtain information in
aid of legislation, but to expose and punish the witnesses. While
there is no congressional power to expose for the sake of exposure,
so long as Congress acts in pursuance of its constitutional power,
courts have no authority to intervene on the basis of the motives
which spurred the exercise of that power.
In Watkins v. United States,00 the witness was convicted under
2 U.S.C. 192, for refusiniig to answer questions when s:iiiinoed
as a witness before the (Committee on IUn-American Activiti,- of
the House of Representatives. He testifiedl freely about hl- ovwn
activities and associations, but refused to answer questions as to
whether he had known certain other persons to have been members
of the Communist Party.
The Court said:
The Court recognized the restraints of the Bill of Rights
upon con 'o e n-ional invest nations in United States v. Ruymel,,
345 4.S. 41,97 L ed 77 0.7 S. Ct. 543. * *
Accommodation of tie congrc..z-ional need for p rticular
information" with tlhe individual and pir-onal inter',-t in
1)privacv is an arduous al(nd delicate task for :iiy court. We ,io
not tundc,-timate tl difficult is that would attend :-uch :.'i
unlertiaking,'. It is manifest that despite the adverse efIects
which follow uipon compelled disclos-ire of private matter-.
not all .-:icl inquiries :ir, 1a rred. Kilboui. v. N% ,,, /,
|10, IU.S. 1( (1i- 1)] teaches that such an inve-t i nation in to
individual aftiairs is invalid if unrelated to any leislative
purpose. That is !beyond the powers conferred uponl the Con-
)L illr. in lte ols ibtieon. Ud ;d St',, x v. lalmey nmke- it
W ,S ?(fa dcr v. Mc!Clllaun, -I4 .;:; F.2d 94 (D.C. Cir. 1972) : Da ris v. Il -;i., 442 F.-', 1207
(D.C. Cir. 1970) : A sora v. Ei.,tiinie. 442 F.2d 751 (D.C. Cir. 1971).
19421 U.. 491 (1 475).
"^ 6 2,4 T.S. 178 (1"-.'7).







plain that the mnere semblance of legislative purpose would
not justify an inquiry in the face of the Bill of Rights. Tihe
critical element is the existence of, and the weight to lie
asriSed to, the interest of the Congress in demanding disclo-
sures from an unwilling witness. We cannot simply assume,
however, that every congressional investigation is justified
by a public need that overbalances any private rights affected.
To do so would ibe to abdicate the responsibility placed by
the Constitution upon the judiciary to insure that the Con-
griess does not unjllstifialbly eiicroach upon an individual's
right to privacy nor abridge his liberty of speech, press,
religion or assely.
Petitioner has earnestlv suggested that the difficult, ques-
tioms of protecting these rights from infringement by legis-
lative inquiries can be surmounmted in this case because there
ITs no public purpose served in his interrogation. His con-
eli'sion is based upon tlie thesis that the Subcommittee was
el),, ired in a program of exposurev for the sake of exposure.
The sole pirpo-:oe of the inquiry, he contends, was to b)riing
down upon hilnself and others the violence of public reaction
Si ase of their past beliefs, exlpressions and associations.
In support of this argument, petitioner lhas marshalled an
impressive array of evidence that some Conr .ess,..'n hAlve
believed that such was their duty, or part of it.
We have no doubt that there is no congressional power to
ex;'<).-e for the s;le of exposure. The pubil)li, i*, of cctirs,,-.
entitled to be informed concerning the workings of its gov-
er-i"lent. 'Flint rainnot be inflated into a general power to
e:xp,.e where tlhe predominant result can only be an invasion
of the private rights of individuals. But a solution to ouri
problem is not to be fond in testing, the motives of commnit-
tee mcIlIIrs for t i purpose. Such is not our fin'ction. Their
Ii"it',, alone would not vitiate an investigation which hlad
1',.,. in-t;itutd by a Hnmse of Congress if thalt nss-minbl,"s
,,i.-iative purpo-c' is l)eing served. ''
bili ;ii ly. in fBalreli ft v. Up;0i al;ia tlat the committc>,: investigation should not h.- de'ined to have
1I. ,n in frm therance of a legisl:at ive puIrp-,ose he,'a;se t.,W true ol ieet ive
of tli., e.(iniitee and of the Cono'ress was purely "exposilre." So long.r
as C,,,_. ie-, a,.t in pii-s-iaie of01 it, con, itittionnl power. the Court
!el'! that te iJuliiary Licks authority to intervene on the basis of
t.i c' i'>{i\ Wili,' spliLm 'd ti.o exercise of that power.

CONs'I-TL( TIOX OF AUTIIORIZING RESOLUTION
Whei'e First Amendment rights are involved, the courts will
cons1rtu.' narrowly the committee's authorizing resolution, re-
quiring that the delegation of power to the committee be clearly
revealed in its charter.
T1 74. ant 1'- -200 (footnotes rim it til).
0, .260 U.S. 109 (1959).







In United Saf/(.s v. R raiely,'" the Houise of Repre(sentatives had
adopted a resolution a authorizing" a committee to invest i grate all lobby-
ing activities in teiided to influence legi,1.ition. The pertinent portion
of the resolution of August 12,.1949, ri-,ii1
The Comniittee is authorized and directed to conduct a
study and investigation of ( 1) all lobbying activities intended
to influelwe, encourage, promote. or ret:rd legislation; and
(2) all activities of agencies of the Federal Government
intended to i ifluence, encourage, promote, or retard
legislation.04
A witness, the secretary of aIn org, : ization engagedI in the :,ale of
books which reflected particular polite( .,,i persp,, active, refused to dis-
close to the committee the names of tlio-e who made bulk purchI ises of
the books for further distribution.
The witness was cited and convicted for contemptt of (Cong',-s.
In discussing the authorizing resolution the Supreme Court
declared:
This is the controlling charter of the committee's powers.
Its right to exact testimony and to call for the production
of documents must be found in this language. The resolution
must speak for itself, since Coiigress put no gloss upon it at
the time of its pass.age. Nor is any help to be had from the fact
that the purpose, of the Buchanan Committee. as the Select
Committee was knov-nt, was to try to "find out how well [the
Federal Ree-,ul:ition of Lobbying Act of 1946, (60 St~it. 839]
worked." 96 Con'". Rec. 13882. That statute ':id a section
of definitions )but Concre-- (lid not define tle terms '"lobbiny"
or "lobbyvi<,' activities'" in that Act, for it did not uise them.
Accordingly, the phrase "lobbying activities' in the re-olu-
tion nw,:.t be ,giviii the n..; ingi that may fairly be attributed
to it, having special r.:,ard for the prm'i:pie of constitutional
adjudic:{lion which makes it ,lve*iive in the choice of fair
alternatives tli~it one construction n-iav .-'i1 serious constitu-
tional qu-tions avoided ,,. another.

Patently. tbe Court's ,1,', to avoid a constitutional i .i le,
if p,,.-:]i.)Ae. al)pli' not merely to leh platio t',.'nic;illv
spe:ikina but also to ong --;oal actio \,iv of olu-
tioln.105

Whenever coii,-tiitional limits upon the invest i.itive
power of Congress li.:vye to l)e d( r;wn bv this Court, it oou1ht
only to be done after (o,'2i:'-. c has dem;'ii- :.,l it full
awarene- of v.1b;at is it -t 1:e by un!',, ivo( .'lv authorizitL_.
an inquiry of (dubioizs limits. Experie',.- admion -',.1*; I- to
t'eid w:i 'ily in this domain. The loose lanua'e of Kill ourn
v. Thomp!son. 103 1US 168. 26 L ed 377, the weighty criticism
to which it has beenii subjected, see. e.g.. Fairman, A[r. Justice
( ,4 lU- '.S. 41 1 ( V', ;.
'5 United St(ftes v. RaF miir 345 U.S. 41. 44-4" I15) (brackets in ,ri-1i.l).







Miller and the Supreme Court. 33-2-334; Landis, Constitu-
tional Limitations on the Congressional Power of Investiga-
tion. 40 Harv L Rev 153. the inroads that have been made
upon that case bv later cases, McGrain v. Daugherty. 273
US 1.35, 170, 171, 71 L ed 580. 591, 592. 47 S Ct 319, 50
ALR 1, and Sinclair v. United States, 279 US 263, 73 L ed
692, 49 S Ct 268, strongly counsel abstention from adjudica-
tion unless no choice is left.
Choice is left. As a matter of English, the phrase "lobbying
activities" readlily lends itself to the construction placed upon
it below, namely, "lobl)bying in its commonly accepted sense."
that is. "representations made directly to the Congress. its
eCrimbers, or its cnmnittees." 90 App DC 382. 391, 197 F2d
16C. 17",. and does not reach what was in Chairman Bu-
chanan's mind. attempts "to saturate the thinking of the corn-
miunitv." 96 Cong Rec 13,S83. If "lobbying" was to cover all
activities of anyone intending to influence, encourage, pro-
mote or retard legislation. why did Concgress differentiate
between lobbyingg activities" and other "activities * in-
tended to influeie"? Had Congress wished to authorize so
extensive an investigation of the influences that form pub-
lic opinion, would it not have used lan,.miage at least as ex-
plicit as it employed in tie very resolution in question in
9iilthorizing investigation of government agencies? Certainly
it does no violence to the phrase "lobbying activities" to give
it a more restricted scope. To give suich meaning is not barred
by intellectual honesty. So to interpret is in the candid serv-
ice of avoidinia a serious, constitutional doubt. "Words have
been strained mwre than they need to b, strained here in order
to avoid that doubt." (Mr. Justice Holmes in Blod.,ett v.
Holden. 275 ITS 142. 14S. 72 L ed 206. '210, 4R S Ct 105. with
the conlcurrence of M\r. Justice Brandeis, Mr. Justice San-
ford and ,Mr. Juivtice Stone.) With a view to observing this
principl)le of wisdom and duty, the Court. very recently
strained words more than they need l)e strained here. United
States v. Congres of Industrial Or' anizations. 335 IS 106.
92 Led 1849. ('O S Ct 1349. The considerations which prevailed
in that case should prevail in this.
Only a word ueed be said a91oit the, debate in Congress
after the committeee reported that Rumelv had refused to pro-
duce the information wlii(-i hlie had a right to refuse under the
restricted meanin of the phrase lobbyingg activities." The
view t0ken at that time by the committee and by the Congress
that tlhe committee was authorized to ask Ruiinely for the
information hle withheld is not legislfive history defining
the s'-ope of a conaressioial measure. What was said in the
debate on .\iiust 30. 190,50. after the controversy had arisen
regard lin" tlie scope of the resolution of Aiiumist 12. 1949. had
thle usual infirmity of post liteni motam. self-servinc: declara-
tionn. Tn any event. Purnelv's dtv to answer must be iid.-ed
as of the time of hlis refusal. The soope of the resolution de-
fining that duut- is therefore to be ascertained as of that time
an9d cannot lbe enlarged by subsequent action of Congress.








Grave conlitihitional questions are matters properly to be
decided by this Court but only when they iic-,;>lap;!ly (cole
before us for adjudh at ion. Until then it is our duty to abstain
from marking the boundaries of congressional power or de-
limiting the protec-tion guaranteed by the Fii:-t Amendinelt.
Only by such self-restraint will w,.- avoid the mischief which
has followed occasional departur,.-. fr-, in the principles which
we profess.106
SI-.',nT AMENDMENT AS PERTINENCY (OIJECTION

The contempt of Congre:o s statute 107 makes it "1 mistlemeanor
for a witness to refuse to answer questions pertiriont to 1ie sub-
ject under inquiry. Ftndaunental fairness requires that the
witness be able to determine at the tire of the committee hearing
what the subject under inquiry is.
A refusal to answer a question on First Amnendr,'ent grounds
has also been held to constitute an objection to the pertinency
of the question even though the word "pertinency" was never
used. Such an objection requires, the committee to meet Fifth
Amendment due process requirements by showing (1) the author-
ity by which it seeks to inquire into the witness' activities, and
(2) that the question is pertinent to the commiU.-e's area of
inquiry.
In United States v. P,-,,4,,1os the witness, a newipaperlai employed
by the N.,. York Times, was subpoenaed and app.ea'eil before the
Senate Internal Security Committee.
He freely answered all ql,,-tions concerning his own ac-
tivities, frankly admitted his past Commiqnist affiliations, ex-
plained the rea'-ons therefore, told the Subcommnittee that he
had fully terminated these 0nflii'Mions in 1949, -even ye.rs
prior to the date of his appeal ra -e 1,efore it. and added
that in the seven years immediately pi',,eding 1949 his asso-
ciations with the'Communist movement were virtually neg-
ligible. However, Peck refused to answer the questions which
would have required him to identify others as Communists."09
-?.**
During the hearing, in partial explanation of his refv;il
to answer a question, P'.,k stated. "The subpoe(.a does not
describe the subject matter under inquiry. I ,.-lie, how-
ever, that I am being called in the course of the hI:,arings
which your subcommittee is presently conducting, during
which numerous individuals who are or have been c.onected
with news) ,pers are questioned with respe-t to their asso-
ciations, activities, and beliefs.'" Were the subject under in-
quirv what the witness stated it to be, the compelling of an-
swers to questions would clearly have 1,ee in violation of
his constitutional rights, for no committee could assume so
106 Id. at 46-4S (footnotes omitted; omissions in original). See also Watkins v. United
Statrs, 345 U.S. 178, 197-99 (1157).
-.) U.S.C. V 192
'9. 154 F. Supp. ;0:3 (D.D.C. 1957).
1, Id. at 604-05.








unlimited and undemocratic a function. The Chairman of
the S )Iconimittee. however, failed to correct the witness or to
offer an explanation of the question under inquiry, but instead
overruled his objection and ordered him to answer the ques-
tion.
That the question iiunder inquiry was not "luminous" to
the witness is the result of the precise defects in the method
of exer'isi Ii, legislative authority which were involved in
Watkins [11af,0.;ns v. United States. 354 U.S. 178 (1957)].
In this caqe, too, "there is a wide gulf between the re-
sponsibility for the use of investigative power and the actual
exercise of that power." In this case, too. the Subcommittee
raIgel over niany snbjecfts during the course of its investiga-
tions. did not clearly establishl any lines of demarcation be-
tween scrie- of invest idations, and did not restrict its question-
ing of thle witne-zscs to any one field. The witness could not
be aware of the subject under inquiry because there was no
subject, except for the broad, vague, general authority of the
Sub'omir, ittee.
The g.wveinment contends, however, that even though a
Committee is acting under a resolution which does not suf-
ficiently define its authority, and even though a witness can-
not determiine the .subject under inquiry, hlie has been afforded
due process of law unless he objects to the questions asked on
thlie .:peific grounds of "pertinency". This Court does not so
narrowly conistrue Watkins. nor does it consider that such
a construction i> in any way consistent with ihe spirit of
that ruling. Rather the Court believes that Watkins requires
strict compliance by the Congress with procedural require-
mnients of definiteness of authority and subject matter when-
ever First A,'mndnient rights of a witness are involved.
In ; nv evnt, the Cort fins that Peck did object to the
lack of pertinency of the questions. Although hlie did not ii:e
the word "pert inen'v.", he informed the Subcommittee that he
did not believe that it possessed the authority to ask the par-
ticular questions involved. In so doinc-r he also specifically
put the Subcommittee on notice that his complaint related
to the invasion of his First Amendment rights. Justifica-
tion for such an invasion may be found only in cases in which
the Siibcomnnittee's authority is clearly defined, a clear ques-
tion under inquiry is established and a question pertinent
thereto is asked. Yet the Subcommittee made no effort to
explain its asserted right to engage in such an invasion.
Surely Peck's objection was siifficient, for where constitutional
rights are involved, courts must liberally interpret objections
of witnesses. They cannot im,)ose a standard of technicality
or insist upon a rigid verbal formula which serves only to
defeat the basic CnIstitiltional liberties they should strive to
preserve.'0
FOURTH AMENDMENT
The rkfld of the people to b1 curecue h,. their person.,, how.es. papers,
and effects, against unreaso-nabe searches and seizures, shall not be
UOId. at 611 (footnotes omitted).








violas'/,; and no w,'ii',,ts 8hal is'8.'e but uponn prohlb/e .u.I. ../-
lorted by oath or ,iffi,',',fion, and piart+icilar,'/q d *!bdu/,q f/it /udif- to
be scar,/rchi d,. au d the ,rson. or things ., *':, d.
The Fourth Amendment protects witnesses before congie -esional
committees from unreasonable searches and seizures.111
A congressional subpoena must not be too indefinite or too wide
of breadth. Each situation must be judeled on its own merits and
adequacy or excess in the breadth of the subpoena are natters
variable in relation to the nature, purpose, and :;cope of the
inquiry.
Depending uponl the ,-rope ot the in\ e(- -iitioll a tl'wp, ,n P Jd ,'
teCCm, should d,-'2ribe tlhe documents al:l 'e-,.ords -()iU'lit wvith all ()f tilhe
particularity the iiature of tie iqiiVv and tihe situation \ -wil 1 ..i-
mit, and the de,:ription cont:liiied in the subpoena should be -uflicient
to enable the pr,:l-pective wit :e-s to know what p!,rticiihir do(cm. nts
were required and to select them accordingly.11:2
If a witness who is required by a subpoena to produce records
has a legitimate reason for failing to produce them, he is required
to state his reasons for noncompliance upon the return of the
subpoena. To deny the committee the opportunity to consider
or remedy the objection is in itself a contempt of the committee's
authority and an obstruction of its process.
In /cPh(,J-m v. TVIfed fqfrS.113,. thle Court said :
The stated purpi:,'s of tl he earino" were to deteVi'ii
"whether there has been Cominiiiiist activity in this vital de-
fense area [Detroit], and if so, the nature, extent, character
and objects thereof." Earlier Subcommittee hearings had
"disclsed a concentration of (onmmunist effort in certain Ite-
fense areas of the country," consisting in );irt of keepilic "tlhe
national organization of the Commniunist Party and tle inter-
national Communist movement fully advi:sedl of industrial
potentialities" in such areas. ,and the Subcommittee also had
reason to believe that the Civil Rights Congre-s was )eing
used for subversive purposes. The subpoena called for "all
records, correspondence and memoraida'" of tie Civil Rli:(its
Congress relating to three specified sibl)jects: (1) The "org_-
nization of" the group, (2) its affiliationn with other origa-
nizations," and (3) "all monies received or expended by [it ."
It would seem clear enough that the uspie-. under which t,.
Civil Rights Congress was organizedl, the identity and extent
of it s affiliations, the source of its funds and to whom distrib-
uiited would be prime considerations in determiining wltr,(ier
the organization was 1 ing used by the Communists in the
Detroit area. If the Civil Rights Congre-(- wasa affiliated with
known Communist organ nizations. or if its funds were(, received
from such organizations or wer e ,used, to support Coin im i -
i1 McRurely v. M r'lcllain, 521 F.2d 1024 (D.C. ir. 1',7..). See also 1'ti:i'. r '*it--.
States, ::54 U.S. 178 (19.'7 ), where the iiriwi i'1' was star, d1. al'li. --I thlp ca4;-' \ 4as l-
ciled on other grounds.
112 Oklahoma Press Puhlisbia9 Co. v. Wialhii', 2.27 U.S. 1 ";I (l114o1) ; M1cP- iI v. I nit,.1
States, :;t14 U.S. 372 (1l;90).
ua3 :-'.4 U.S. :172 (1960).







activities in the Detroit area, those facts, it is reasonable to
suppose, would be shown by the records called for by the
subpoena, and those facts would be highly pelrtinent to the
Subcommittee's inquiry. It thus appears that the records
called for by the subpoena were not "plainly incompetent or
irrelevant to any lawful purpose [of the Subcommittee] in
the discharge of [its] duties," E'ndicott Johnson Corp. v.
Pe rkin.. 317 US 501, 509, 87 L ed 421, 429, 63 S Ct 3.9, but,
on the contrary, were reasonably "relevant to the inquiry,"
Okahorna. Press Pub. Co. v. o77lling. 327 US 186, 209, 90
L ed 614. 629, 66 S Ct 494,166 ALR 531.
Finally, petitioner contends that the subpoena was so broad
as to constitute an unreasonable search and seizure in viola-
tion of the Fourth Amendment of the Constitution. "[A ]de-
(quacy or excess in the breadth of the subpoena are matters
variable in relation to the nature, purposes and scope of the
inquiry," Oklahomna Press Pub. Co. v. Walhi.q, supra (327
US at 209). The Subcommittee's inquiry here was a relatively
broad one-whether "there has been Communist activity in
this vital defense area [Detroit], and if so, the nature, extent,
character and objects thereof"-and the permissible scope of
materials that could reasonably be sought was necessarily
equally broad.
It is not reasonable to suppose that tlhe Subcommittee knew
precisely what books and records were kept by the Civil
Rights Congress, and therefore the subpoena could only
"specif [y] * with reasonable particularity, the subl)jects
to which the documents * relate," Brown v. United
St's,. 276 US 134,143.72 L ed 500, 504, 48 S Ct 288. The call
of the subpoena for "all records, correspondence and memo-
randa" of the Civil Rights Congress relating to the three
specified subjects describes them "with all of the p)articularity
the nature of the inquiry and the [Subcommittee's] situation
would permit." Oklahoma. Pres.s Pub. Co. v. Walinqg, supra
(327 US at 210, note 48). "[T] ie description contained in the
subpoena was sufficient to enable [petitioner] to know what
p) rticlar documents were required and to select them accord-
ingly," Brown v. f1nlted States, supra (276 US at 143). If
petitioner was in doubt as to what records were required by
tlhe subpoena, or found it unduly burdensome, or found it to
call for records unrelated to the inquiry, he could and should
have so advised the Subcommittee. where the defect, if any,
"could easily have been remedied," United States v. Bryan.,
supra (339 US at 333) ."114
The .tpp1i;carhity of ,the Exclusionary Rulie to 'Congressional
In reff/'qftn'onm
The "exclusionary rule" requires that evidence seized in viola-
tion of the Fourth Amendment and the fruits of such evidence
cannot be used in a criminal proceeding against the victim of the
illegal search.
11 Id. at 381-82 (brackets nnd omissions In original).







Whether the "exclusionary rule" is applicable to congressional
committee proceedings has not been determined by the Supreme
Court.
However the Court of Appe:ls for the District of (ColumlIbia ]as,
in three cases, disc-:.ed different facets of thie problenis involved.
In United Stat ,- v. M.l[cSt ly, 115 the court held that in ;, (,onte1 pt
of Congress case where the defendants had refi i-'d to comply witli a
committee's supoeijas the subpoenas themselves were not adm(issible
in evidence since the information upon which tle subpoenas were
framed wa-; derived from a previous unconstitutional .;.Ic.
Alan and \Mart'garet McSurely refli-e.d in Marclh I:''I!, to
comply with a subpoena d'/l,., tecium i--'iedd by the Senlate
Perm itleint Subcolmmittee on Investigatlions of tlie (iovern-
ment Operations Committee, chaired by St-!titor Jolim lL.
JMcClellan, demanding the production of doci uii(ients relating
to nmem)bei lip in and activities of scve: ,l organiz'atioj-. in-
cluding the Southern C(onferenice Ihucatioinal I Fun. i tliee
Southern Student Organization (Connmittee, tle Stu"tideit
Non1violet (C ordinating C(4omn1itte an1d tld!-i:l for a
Democratic Society, all also plai tififs in t is acti(oi.
The McSurelys filed an action in tlhe U.S. Di -f ict Court
for the District of Columbia on the date named inl the sub-
poena, for their appeatrance before the ,)coilnittee seeking
a declaration that comiplianc' within the subpoena wis not
required(, a preliiiinarv and I)ermanent injunction against in-
stitution of criminal proceedings ;ag:ii,-t thliem for their fail-
ure to comply with the subpoena, and d(:111a8gr.. No action had
1beei taken in the civil action at the time the M('Surelvs were
indicted for contempt of Congie;':. for their failure to )(o01tlply
with the subpoenas. Subsequently, the McSurelys filed an
amended aiind supplemental complaint seeking only con-
pensatory and punitive (dami1ages. They allegedly that the de-
fendants, Senator McClellan, three members of the subcom-
tli t t e staff, and the Kentucky Common wealth Attorney !who
initially siized from their home the docu',ii:its which in-
cluded tho-i.- later subpoenaed by the subco(nmittee, ent:'e.d
into a conspiracy to deprive their of their constitution :11
rights. They -mught (lamiages "for the unlawful seizure, in-
spe,.t on and appropriation of their personal and bu,.ii(--;
papers and documents and other objects and articles, for the
issuance of subpoenas b;is.d on ille.a.,illy obtained informa-
tion and invalid on their face, for their tihumiliation and
emi,:]rrasz-inieiit, mon.nal and emotional 1pii,. loss of employ-
ment, disruption of per-onal privacy and szfetv ca,,-ed th,.re-
by. all in violation and derog'ation of their rights under the
First, Fourth, Fifth, and Fourt efnth Amendments to thle U.S.
Constitution and the laws of the United Si;,:tei."
Thie M[cSurelys were convicted of c.nteiimpt of Con-_,e.r--
and sentenced in June 1970 in the criminal al io. Trle ,. ,nvie-
tions were appealed to the court of app( al-. which rever-,',l.
n5473 F.2d 1178 (D.C. Cir. 1972).








The court of appeals said:
From the facts, the conclusion is inescapable that the sub-
poenas issued by the Subconunmittee for the production of the
McSurely documents were the product of the unauthorized
inspection and search of the documents by an agent of the
Subcommittee itself. However, the trial court reached a dif-
ferent conclusion.
In summary the trial court held that the state officials,
having lawful custody of the seized documents, lawfully
gave the Subcommittee's investigator permission to inspect
and search them and to transport them all the way to the
Subcommittee's offices in Washington. 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. Thus, the framing
by the Subcommittee of the subpoenas relied upon here for
conviction of the McSurelys was based upon information de-
rived from unconstitutional searches, both by state officials
and by the Subcomni mittee's investigator.
The trial court seems to have taken the position that
whether or not the information concerning the documents
.nbpoenaed was obtained by unconstitutional means, the
"exclusionary rule", which forbids the use of unlawfully
seized items as evidence against the victim of the seizure.
applies only to criminal prosecutions and, hence, is not ap-
plicable to legislative subpoenas. There is nothing" in logic nor
in the history of the "exclusionary rule" to support its inap-
plicability to legislative subpoenas framed upon informa-
tion derived by the Government through a previous uncon-
stititional search.116
*
[The Court concluded :] The contempt trial of the McSure-
iys was a criminal proceeding. The basis of their convictions
reted im)on tfle Siihlominittee's subpoenas. Tlhe information
uipon whlichl the Subcommittee subpoenas were framed was
derived by the Subcommittee through a previous unconstitu-
tional search and seizure by the Kentucky officials and the
Subcommittee's own investigator. We hold that the "exclu-
sionary rule" applies to these subpoenas and that it was
116 Id. at 1191-92 (footnotes omitted; emphasis in originally.







error for the District Court to receive them in evidlelce at
the trial.117
The court of appeals gave its decision in Uni;ted S'ttt.s v. /,118
the contempt case, on December 20, 1972. On June 12. 1973. in the civil
action brought by the McSurelys. the defendants' motion for sum-
mary judgment was denied by the district court, and defendants
appealed.
While the appeal was before the District of Columbia Court of Ap-
peals, the Supl)remie Court, speahkiigr in Caland ta v. I nfed 8tatfi .119
decided that a grand jury, in propouniding questions to one ale'a ring
before it. coulld utilize d(lociuments obtained in a previous ill.egIal s1erch.
The ID)istrict of (C'olumbia (C'ourt of A)lppeals. in reviewing the dis-
trict co()urts denial of the motion for stimii, iry judgment in the
McSurelys' civil case, concluded (in McJnely v. Mc Clellan 120), that
its decision in United statess v. IcIy.u,. 1y. aild the Supremie court's s
Cahiid,'a opinion were incompatible.
The court of appl)eals said:
In United States v. Clanm.'1,a the Supreme Court held that
the exclusionary rule did not bar a grand jury from subpoena-
ing Calandra in order to ask him questions ba-,ed on evidence
illegally seized during a search of his place of business. The
Court observed first that grand juries traditionally have had
br<,ad investigatory powers. Because they d(o not finally ad-
judicate ii ilt or innocence, they are allowed to operate
"unimpeded by tie evi(deltiary and pro,.edural restrictions
apl)li(al)le to a criminal trial." To permit witne--es to invoke
the exclusionary rule and insist on suppression hearings
might not only halt the orderly process of an investigation
but also "necessitate extended litigation of issues only tan-
gentially related to the grand jury's primary objective e."

The Supreme Court's reasoning iln Otdandra. appears
directly applical1le to the instant case. If anything, a Con-
o'ressional committee lias even 1r, aler investigatory powers
than a gr'a ind jury. The primary purpose of a Conre'.s.sionlal
hearing is to gather data upon which to b"ie policy doter-
minations which inform the legislative pro',e. Such wide-
ranging inquiries are extremnelyv ill-adapted to tli, "eviden-
tiarv and procedural restrictions applic.ible to a criminal
t Ii i M
tnn l.
Conri,-*, as even its critics will a-rotev. d information upon whiih to act. It lm;s traditionally 1ween
given 1)i'oad powers of investigation with which to meet that
need. IVvess we are to aine that Con.''s should reinin
pristine and niive. much of the data it should consider ill
inevitably come to its attention in thor muffhly unadmirable
w19vs.
1Whereas exclusion in the criminal area m;'v ream;suiWre citi-
zenis in their confidence that tliir government'5 executive will
"7 Td. at 1194.
ii8473 F.2d 1178 (D.C. Cir. 1.972).
114414r-.R. iS (19q74).
10 521 F.2d 1024 (D.C. Cir. 1975).







be a law abider, denial of information to Congress will neither
provide meaningful deterrence nor reassure citizens that
their governments legislature will be a wordly-wise law-
imaker. While the courts mnay refuse to allow their criminal
processes to become tainted by eating the "'fruit of the poison-
ous tree," it would be folly to forbid Congressional knowl-
edge that bad apples exist and to stymie Congressional action
on the basis of all information, good or bad in origin. United
States v. McSurely. 154 U.S.App.D.C. 141, 163-64, 473 F.2d
1178, 1200-01 (1972) (Wilkey, J., concurring) (footnote
omitted). See Catia v. SeidI, 66 N.J. 32, 327 A.2d 658
(1974). [Footnote supplied.]
it *j *( *j
In sum, it would appear under Cdlandra that a Congres-
sional committee should enjoy at least the same prerogative
as a grand jury- to use material which has been unlawfully
seized. As with the grand jury, the Congressional committee
may not be privileged to utilize such information if its agents
have actively participated in the original unlawful seizure.
Outside of that circum-tance, however, a committee commits
no new Fourth Amendment wrong by examining and copy-
ing documents originally unlawfully secured.
*
Cf,,lpdra makes clear that a grand jury or, we submit, a
Con_,ressional committee has the right in its investigatory
rapacity to use thie product of a past unlawful search and
seizure. The Supreme Court emphasized that such use works
no new Fourth Amendment wrong on the owners of the
seized property. Since effective utilization of materials re-
qiiires their exnminntion, it is difficult to conceive, after
C(,o,7lanu. how the inspection by one authorized government
fgezit of documents in the custody of another can be charac-
terized as an unconstitutional search. The constitutional
violation is completed with the original taking.121
The court of appeals stated that it could not find that the district
court had erroneously denied defendants' motion for summary judg-
ment. The case was remanded to the district court for determination
of factual issues: whether the congressional defendants had been
active participants in the unlawful search of tlhe McSurelys' home,
and whether there was dissemination of the information outside of
Congress. The McSurelys have filed a motion for a rehearing with
the court of appeals.
The exclusionary rule has been held to preclude, in a criminal
prosecution, the admission into evidence of documents which had
been unlawfully seized at the direction of a congressional
committee.
In Nelson v. United Statcs,2 a witness appeared, without counsel,
before a Senate crime investigating committee under compulsion of
a Id. at 1l44-47 (footnotes onmitted unless cited in text).
2r0S F.2d 505 (D.C. Cir.), cert. denied, 346 U.S. S27 (1953).








subpoena. The committee, without advising lilm of his riAghts to coiI I-'.1
and against self-incrimiIation, tr: taenedI pri,-ci',utioln for contempt if
he refil uel to answer, for pejuriy if he lied, anid for gambling activity i,'-
if he told the truth, and, W, a mniIi" that hlie was still under subpoeimx di-
rected himii to lead a policenman to his home and there turn over a
book. The poli)ceman, )0pon eiiteringo, defendant s hoi e and learlnilg1
tliat the book wa- not available, examline(ld and took without pl,)'s-
other papers and docum( ents.
In the sil l)-eiquent criminal pir,-t.,iition foi ramli i ii activities the
court held that since the committee had not i--i~led a stbp)oenlt (lace
tecumn for the docuimnent-, which the court s:l id would not have violated
the Fourth Amendment, thle conmiittee could not order a ,c icli or
seizure of the materials without the wit ml-' coii.:-cnt. Timns. fimnlini that
the material had been seized in violation of tihe Fourth Amendmient,
the court rules it was not admissible evidence in the criminal trial.
"[T]he Speech or Debate ClauI e '1 will not shield an employee
or Member of Congress from prosecution or suit for a crime or
Fourth Amendment violation arising from his efforts to obtain
information." I!
In McSw !y v. M 7C.7, .m1' the I.C. Court of Appl,,s noted two
requirements for making ap)plic'able the protection of the Sl,,.,,h or
Debate Clause :o (1) the Members and staff iim-i be :ating ,, "within
the lef-islative sphere,' 127 anl (2) tlhe subject latter involved nust
be within the parameters of the junil-tliction of Congre-s and thie pair-
ticular committee.12 The court st it e(d that
[ti]he Si,'c',h or IDe),late Clause 121 * provided, prote.tion
to Members of Co(rncI< .v and their aides w-iho are 'ngao'ed4 in
the proce'- of leg(Yislatting.130 It is a functional inmmunity,
extended whether' or not their acts are in fact mllotivated by
the desire to forward ConIr ,-' busin,-.131 Tle critij.1 ala-
lytical qui,-r Ion p)o-(,(d * is how expaI-ive a (lefinitio to
give the 'legislative sphere.' [Tlie] eJd isiois ;3- are clear tfhat
Mell 1 ,rs of (C(n 'r-, are condpletely imm i iXed from inqlui ry
into their acts of speaking and voting (during commilittee and
lfoio is, 1rocI,''!; 1 -. A Sel: tor lmy miialiciously libel a pri\ ate
citizen on the floor of thle Senate for purely pei-mial rea:-,lms
nevertheless his speech will be protl ed.
Further. unler Doe v. f Mc /l/h [412 1 .S. 306 (197 )1].
the acts of auuthoriziing a ('co0 1I-cional investigation pursuant
ISz United States Const. Art. I. 6. cl. 1. "[F]or wny S[lperi or Debate In either House,
they I the Senators and Representatives] shall not be i'ltlioinil In any other place."
Si2.r'us relui v. cClh'llon. 521 F.2d 1',24. 1040 (l'.--, 'I' Il. i.'n, alsn sid that the
Supreme Court's ilo.i i','n in "'Dombiiiro .'.i V. Vf.'o.'thnd. :S7 U.S. 'c2, 4 .5 (lf( '7 indicates
that the Speech or Debate Clause will not protect a Member or oiipl-.vi.,, of Cin-'r-..- friii
suit under the Fourth .\mAiionlnnt if he actively oiiniL', in an inil.nwiv l sviearch and seizure
in order to obtain information." Mc'urcli, v. McCleuii, miprai at 10::7.
12', 521 F.2d 111'4 (l'1 75.).
-126 united( States Const. Art. I, S 6, cI. 1.
12- 7 ifted Stat es v. Brewster, 40R U.S. .50t (1972) ; Gravel v. United Sftate. 4nl I'.S. .,
(1972) : Doe v. 1',.filhn, 412 U.S. vIl l( 7::} ; I ,*i-lnd v. iltcd .Wot($ts 8i rtic(m( '
Fund. 421 U'.S. 491 (1975).
18 Teajaje, v. Brandho, ,o'. 341 U.S. 367 (1951).
',, United States Const. Art. I. 6. el. 1.
V0 GrareI v. United Statt,. 40.' U.S. ,ol.. 616 (1972); Doe v. MeMillan, 412 U.S. .:1W 2'24
(1973).
V1 U'nitcfed Rtates v. Brewster, 40 R.S. ,t, ,25 (1972).
:;!2 'U ili .I States v. BrP 'r.rffr, 4O, U.S. 5'1 (1972) : Grarrl v. Unife,' .S/t.,t 41)'U.. T ',.S
(1972) : loe v. 1[c.Vilbrai. 412 U.S. :'06 (197.;) ; l',i-li, 'l v. United *i' .tes Scrriccne''8
Fund. 421 U.S. 491 (1975).







to which sensitive materials involving named individuals are
gathered, holding hearings where tlhe materials are presented,
preparing a report where they are reproduced, and authoriz-
ing the publication and distribution of the report all are fully
protected by the Speech or Debate Clause.133
*
The only other requirement placed upon Congressional in-
vestigators (and, for that matter, Members of Congress in-
vo'lved in investigative activity) as a prereqiiisite to their
invocation of Speech or Debate Clause protection is that their
investigation be within the jurisdiction of Congress and their
particular committee. The Supreme Court early emphasized.
however, in the seminal case of Tehney v. B ,nadliot'e, that
the prerogative of the judiciary to deterinie this question
was extremely limited.
The courts should not go beyond tihe narrow con-
fines of determining that a committee's inquiry may
fairly lbe deemed within its province. To find that a
committee's investigation has exceeded the bounds of
legislative power it must be obvious that there was a
usurpation of functions exclusively vested in the Ju-
diciary or the Executive.135
Thus, it matters not that the true purpose behind a conm-
mittee's iie of its investigative power is to ridicule, harass.
or punish a privaf0 citizen.1-: So long as the par'ticular inv.r'-
tigative activity does not trench upon Executive or judicial
prerogatives-so long as it remains facially legislative in
character-the committee, and its employees, are protected.'3";
The court, however, emphasized that there were definiiite limitations
on the methods that could be used in obtaining information while
keeping the protection of the Speech or Debate Clause immunity,
This does ,iot mean a Member of Congress or Congressional
emplloyee is free to us" every conceivable means whether law-
ful or not, to obtain investigatory materials, without fear of
prosecution or civil suit. The Supreme Court in Gravel v.
Ui;ted Slite.. [4118 U.S. 6()6 (1972)] held a Senator and his
aide immlnile from qiilstionig concerning their investigatory
acts in preparation for a subcommittee hea ring-except inso-
far as those acts were criminal or related to third-party crime.
Also, Dowboi.'Ak; v. Ewit.lmd [387 U.S. s2 (1967)] inldicates
that the Speech or I)ebate Clause will not protect a MeiiibLer
or employee of Congress from suit under tlie Fourth A meml-
ment if he actively engages in an unlawful search and seizure
in order to obtain information. As with the charge of taking
a bribe involved in United Staftes v. Bryester [40S U.S. 501
(1972)], a burglary (to take one example) can be "no part
of the legislative process or function; it is not a legislative
act." If (C'onmgressional investigators are to take advantage of
'3 521 F.2d at 1036 (footnotes omitted).
n .341 U.S. 367 (1951).
J Id. at 37..
13 Id. at 377-78.
1: 521 F.2d at 1037-38 (footnotes omitted).







the immunity afforded by the Speech or l)ebate ( clause, tlherle-
fore, they must use lawful invelA-tigative means to obtain their
information.138
Dissemination outside of Cong ress of information obtained puir-
suant to a congressional invest igation will cause the Speech or Del)-ite
Clause immunity to be lost.139
The court in McSe,('hy v. M el- 14() said that
The Supreme Court made cle ar in Doe v. Mc(M;lUv 14,
that the decision of a CongressionIl committee to include in
its report information about individual citizens which might
prove highly damaging to their reputations and careers wHS
a. protected "legislative act'," even if such information was iiot
"even remotely useful" to the committee's investigation.1-'
That report could be "distributed to and used for Iegislative
purposes by Members of Coigre.,-. coig ir,,si onal comiitt ee.
and institutional or individual legislative functionaries"
without losing its immunity.143 The Court stressed, however.
that the protection of the Speech or Delbate Clause could not
be invoked by Government authorities who published andI
distributed that report outside legislative channels. Whether
acting with authorization from Congrqi-s or not, those whlio
disseminated otherwise actionable material to the public at
large would be required to "respond to private suits to the
extent that others must respond in light of the Constitution
and applicable laws." 144
Emphasizing that not everything a Member of Coii!i--
might regularly do is a "legislative act." the Court observ((ed :
Members of Congre-s rmay frequently be in towuchl
with and seek to influence the Executive Branch of
Government, but this conduct "though generally
done, is not protected legislative activity." * Nor
does the Speech or Debate Clau-e protect a private
republication of documents introduced and made
public at a committee hearing, although the hearing
was unquestionably part of the legislative pro,'(s:.
Graiel v. United Satab [408 i.S. 606) (1972)].115
In sum, even if Congress' use of material injurious to pri-
vate reputation is protected for the purpose of issuing sub-
poenas, writing reports, and deliberating on legislation, tlie
immunity afforded by the Speech or Debate Clause cea-t- if
that material is disseminated either to the Executive or to tlhe
public at large 146
**
Thus, if in fact the copies of documents in the possession of
the Subcommittee may have been available to the Internal
1," Id. at 1087 (footnotes omitted).
139 This principle was first enunciated in Doe v. McMillan, 412 U.S. 306 (197.2.
140 521 F.2d 1024 (1975).
41 412 U.S. 306 (1972).
142 Id. at 313.
143 Id. at 312.
144 Id. at 316.
14', Id. at .313-14 (brackets in orighital).
146,-." F..2,1 at 111:19-40i (footnotes omitted).







Revenue Service, as the plaintiffs allege, the defendant cannot
evade questioning about the transaction. This does not mean,
however, * that such a transfer would necessarily be un-
lawful. It simply means that the defendants cannot interpose
the Speech or Debate Clause as a defense to a private suit aris-
ing out of such activity.147
In summary, the court said:
The preceding outline of the case law surrounding the
Speech or Debate Clause makes clear that, as a general rule,
the process of gathering and utilizing information within
Congress is protected activity within the "legislative sphere."
Constitutional immunity may be withdrawn, however, if no
rational legislative purpose can be found for a committee's
action in directing its investigation toward a particular
individual, organization, or institution. Also, the Speech or
Debate Clause will not shield an employee or Member of
Congress from prosecution or suit for a crime or Fourth
Amendment violation arising from his efforts to obtain
information. Finally, the dissemination of information out-
side. of Congress is not a protected legislative act and enjoys
no special constitutional immunity.148

FIFTHr AMENDMENT
Yo person * shall be compelled in any criminal case to be a wit-
vess against himself * nor be deprived of life, liberty or property
without due process of law.

SELF-INCRIMINATION
A witness before a congressional committee has a personal
privilege to refuse to testify concerning matters that might tend
to incriminate him.149
N( cs.;fy of Raising
A witness must assert the privilege against self-incrimination
when he is called upon to testify if he desires to avail himself
of that privilege.150
Thime of Chdlaim
The privilege against self-incrimination cannot be asserted in
advance of the questions actually propounded in the examination
or hearing.151
Form of Claim,
A claim of the privilege against self-incrimination does not
require any special combination of words. A simple reference to
the Fifth Amendment is sufficient; however, objection made in
14T d. at 1643 (footnotes omitted).
Ia Id. at 1040.
Watkins v. United States, 354 U.S. 178. 195-96 (1957).
Q'? Quinn v. United States, 349 U.S. 155 (1955) ; Enmspak v. United States, 349 U.S. 190
(1 !1-5 1.
151 Marcello v. United States, 196 F.2d 437 (5th Cir. 1952).





59

any language that a committee may be expected to understand
as an attempl)t to invoke the privilege must be respected.1:'2
A refusal to answer based on "the First Amendment to the
Constitution, supplemented by the Fifth" is sufficient to put the
committee on notice of an apparent claim of privilege.','
III L.pak v. N. United Stae,. a similar reference to "primialrily
the First Amendment, supplemented by the Fiftli" was held su'licient
as a claim of the privilege despite the fact that the witn.-. ]lad
answered "No" to a question whletlher lie felt that revel:tilii I his knowl-
edge concerning i his :-ssociations would subject liim to criminal p,,i eu-
tion. The C(ourt held the answer was equivocal bea cie,
It may have nmerelv relwresenlted a jjustifiablle reftisal to
discuss tlie reasons underlvin2" 1)etitioner's :i.-,rtionl of tile
privilege: tlhe privilege would be of little avail if a witilk-*
invoking it were required( to dis,'lose the precise hazard which
hlie fears. And even if petitioner's "No" answer were taken as
responsive to the (quest ion, the answer would still be consistent
within a claim of the privilege. The protection of thie Sel f-
Incrimination Clause is not limited to admi ssioils that "wolld
subject [a witn,'-s|i to criminal prov.cuition,": for thlis Court
has repeatedly held that "Wlhether such admliissions by theml-
selves would support a conviction uiinder a criminal statute
is iminaterial" and tliat the liivileoe also extends to ad-
missions tlihat inmayv only tend to incriminate. In any event, we
cannot s:;iy that tlhe colloquy between the colmmlittee a nd
petitioner was sufficiently unamlbiguous to warrant finding
a waiver here.15'
If a witness urges two constitutional objections to a committee's
line of questioning, he is not bound at his peril to choose between
them. By pressing both objections, he does not lose a privilege
which would have been valid if he had only relied on one.1=-`
In refusing to answer a question a witness may adopt tlhe
grounds relied upon by another witness.
In Qf'N- v. ';tew Nte.1(J5.' Q-inn and two others were sunnumioned
by the Committee on lnm-Amierican Activities to t,,-Iifyt pusuant to
subpoena. One of them refused to say whether hlie was or liad 1,.en :1
member of tlhe Coinmmuist IParty, b1Hil--iii his refusal oni tlie First and
Fifth Anendments, as well as the First Amendment sul)l)leiented 1)y
the Fifth Amendment. Quinn adopted the other's statement as his o"1ii
and refused to answer the same question.
[Mr. Q I NN. I wold! like to make a sitateml el t alone ti
lines that [all earlier witness] made yesterday in regard to a
qui,,-tion of that nature. I feel that tihe political beliefs, opin-
ions, and associations of the American people can be held
secret if they so desire.
:"1 un;tcd Statffc v. Fitzpatrifk. 96 F. Smii.,. 491 (D.D.C. 1951).
-7 OuQitn v. 1'tifcd Rtates, 349 U.S. 155 (1955).
7:, 49 V.S. 1!111 (1955).
[d I1. at 197 9.4 (footnotes omittol : bracl kots in onrl-Inal ).
SQiiuinn v. United States, 349 U.S. 155, 11;2 (1:,.',,).
-J :49) U.S. 155 (1955).
S62-125-76--5







Mr. WOo D. Anld for those reasons do you decline to answer
that question .
Mr. Quix-x. I didn't say I was declining to answer the
qluestionl. Before I do'answer the question I should like to say
that I support the position taken by [that witness] yesterday.
Mr. WOnD. D)id you hear his statement yesterday?
Mr. QiNxx. Yes: I did.
Mr. WOOD. D)o you support it in its entirety?
Mr. QUINN. In its entirety.
Mr. WOOD. Is,; there anvthling else voi want to add to it?
Mr. Q-rx.I No: I don't.
Mr. Woon. Will you accept it as the expression of your
views then?
Mr. QINNY. You may. I may add I feel I have no other
choice in this minatter, because the defense of the Constitution,
I hold sacred. I don't feel I am hiding behind the Constitu-
tion. but in this case I am standing before it, defending it,
as small as I am.
Mr. WOOD. Having made that statement and subscribed to
the sentiments expressed by tihe witness yesterday to whom
vol referred, will you now answer the question whether you
a1r, now0 or ha\e ever been a member of tlie Communist Party ?
Mr. QI-NN. I hold that tlhe Constitution holds sacred tihe
ri-ghts of people -
Mr. Woon. You have stated your position. Having enunci-
ated your sentiments and tlyour position, will you now answer
thle question whether vou are now or ever have been a member
of the Commin nist Party, or do you decline to answer?
Mr. Qrixx. I decline to discuss with the committee ques-
tionis of that nature.1'58
Tlhe comnniittee did not a,'k him to state more specifically the ground
for hi., refu.-qal to answer and d(lid not specifically override his ob-
jection or direct him to answer. Hle was indicted for contempt of
Congress and was convicted under 2 U-.S.C. 192.
Thle Simpremie Court reversed his conviction holding that his refer-
ence to tlie Fifth Amendment was sufficient to invoke the privilege
and moreover flthait the conviction could not stand because the com-
mittee did inot specifically overrule Iis objection and direct him to ai-
swer tlihe questions.
I, l;i. >//,poi) a Cl,,;m of Ffth Aimendmeent P-'ilege
Criminal intent is an essential element and must be proved in
a prosecution for contempt of Congress under 2 U.S.C. 192.
Therefore, when a witness refuses to answer a question pro-
pounded by a congressional committee on the grounds of Fifth
Amendment "self-incrimination" privilege, the committee must
disallow the objection and clearly apprise the witness that an
answer is demanded. If the committee fails to do this, and leaves
the witness to speculate about the risk of possible prosecution
for contempt and does not give him a clear choice between stand-
ing on his objection and compliance with a committee ruling, his
conviction for contempt cannot stand.
Id. at 17,,-.5in n. 4.







It rtsponse to a subpoela, petitioner appear ied before [a]
subeoimlittee on June 21, 1950. lie w:Is then l general ii;tii1(-,r
both of Freelom of the Pr's- Co.. Inc., which pul]i.ln,. the
Daily lWork ',,, and of tile I)Da;ly lV'ori, iti ,.elf. Dlrinl tlie
-cour-e of the interrogation, memnd be's of thle coililtittee and
the commiittee counsel po-ed varaioils q(c,.-.tioji i- dlealiln,, with
Bart's Iacekground, his a'tiv cities, and allegffed a-.-sci;ite.
Among these were the live questions vwhi ich. 1ecal-, of peli-
tioner's refil-al to answer, led to thle convictions nlow un1ler
scrutiny. The pa iticular inquirie- involved petitloneV's name
when hlie came to this country as a child, his name before it was
changed years ago to Philip IBart ptirsul;it to a New York
court order, his fathers name. and the identity of officials of
the Ohio section of the Coummnist Pa'tv in 1.9,,. To the
questions concerning name or family background, lie rai-dd
objections of pertinencyv: to tlie other he iunequivocallyv
pleaded the privilege against self-incrimination.
In finding petitioner guilty, the trial court rejected tI-.
defense-, as without merit. Before the (Court of Appeals. pe-
ritioner abandoned his defense. as to lack of pertinen<'v. The
majority thought that this ailndl petitioner's objections from thie committee record and thut
thev were thus fa('ed with I"naked refi-:;ils to alllswer" which
did not require afirnative riduling's from the committee. We
cannot agree. Thie objectionls were in fact iid(le before the
committee and tlie witness was entitled to a cleaircut rulinlr
at that time, even thouoIh the claims were later abandoned
or found to be invalid. Qu;inn v. [I:t,, d St, f [,)49 I .S. 155
(1955)]. Without such a ruling, evidence of the requisite
criminal intent to violate 192 is lacking. An abandonment
made two and one-half years after the objections were raised
cannot serve retroactively to elli i nate the need for a rul inr.
If the requirement of criminal intent is not satisfied at tlHo
time of tlie hearing, it cannot be satisfied nu)c pImo ftuoe f ,b
a later abandonment of petitioners olbjection. Therefore. thle
issue before us is. upon the record as it stood at the comple-
tion of thlie hearing, whletlierv petitioned was appri-vJ1 of the
committee's disl)osition of his objections.
At no time did the committee directly overrule petitioned's
claims of -'lf-incrimination or lak of pe,'rt ineIcI eoV was
petitioner inldirectlv informed of thle conmlittees position
through a specific direction to answer. At one junciiture. ('oil-
C.s iiii ( tXe made thlie si, '-t ion to tlie chai rman that tle
witness "lbe advi.-ed of tlie possib0iliti,.s of contempt" for )ail-
ure to I.- pond. but thle ,su,-t ion w, rejected. Tlhe lnc i vii;,
-tated:
"No. lie hlias coli-:el. Counsel knows that is the
law. Pi,)r'e(. MrI. Ta venner."
A few moments later, wioin, committee con:(-el in-
quired as to certain details of petitioner's iii:rri;,.'se.
the following ir colloquy took place:
"Mi'. N,:r:i; [Counel& for petitioner]. "Mr. Chair-
man. what concern is it of anybody here-







'Mr. WALTER. We permit you to appear with your
client for the purpose of advising your client. You
apparently are old enough to have had some experi-
ence in court.
"Mr. I'NGER. Ye.?. indeed.
"Mr. WALTER. Of Course. you know there are many
Preliminary questions asked witnesses, leading up to
some point. As they are propounded you will readily
learn what the purpose is. Just advise your client and
don't argue with the committee, because uie don't
rule on objections."
The questioning proceeded on this basis.
Because of the consistent failure to advise the wit-
ness of the committee's position as to his objections.
petitioner was left to speculate about the risk of pos-
sible prosecution for contempt ; he was not given a
clear choice between standing on his objection and
compliance with a, committee ruling. Because of this
defect in laying the necessary foundation for a pro-
secution under 192. petitioner's conviction cannot
stand under the criteria set forth more fully in
Quinn v. U ited States.159
In ldiler v, Urnited Stafe.,R1<0 the witness was convicted for unlaw-
fully refusing to answer a question put to him by a subcommittee of
the Committee on ITn-American Activities of the House of Repre-
sentatives under -2 U.S.C. 192.
The circuit court reversed the conviction with directions to enter
iudument of acquittal iholdina that where a witness urged the chair-
man of a congressional committee not to press the direction to answer
a question as to names of persons present with him at the meeting and
requested tlhe chairman to defer it until a later time. to which the
cldairman agreed, and the hearing terminated shortly thereafter with-
out any unequivocally renewed direction or command to answer the
suspended question. the witness hliad the riglit to leave the hearing
tlfiinking that the direction to answer was still suspended, if not aban-
dloned. and lie was not guilty of unlawfully refusing to answer the
question put to him by the committee.
A committee is not required to resort to any fixed verbal for-
mula to indicate its disposition of an objection. If the committee's
response is ambiguous and does not clearly apprise the witness
that an answer is demanded notwithstanding his objections a
conviction for refusal to answer questions will not be upheld.
Committees of Congress must conduct examinations in
such a manner that it is clear to the witness that the Committee
recognizes him as being ill default, and anything short of a
clear cut default on the part of the witness will not sustain a
conviction for contempt of Congress. Tie transcript of tlie
defendant Kamp's testimony fails to disclose such a clear cut
default. The witness is not required to enter into a guessing
=' Part rv. 'nited' .ftate. .',49 U.S. 219. 220-2.3 (1955) (footnotes omitted) ; see ailso
Elmipa ki v. U'nifteIl SaIe ;'.41) V.8. 190. 202 119 5).
1-1' 2.-,9 F.2d1 lK7 (D.C. Cir. 195.) lper eu ria.ni ).








gamne when called( upon to alppeatr before a colmmlittee. 'lite
burden is upon tile preiding m ,iiIer to mi ake clea i thile direc-
tions of the commin ittee, to consider anyv r'asoilable explana-
tions gi-vel by the witness, and tlihen to rule onil the wit,-s
response.
The defendant was accordingly acquitted. 16
Where a witness took thle position that lie would refu Ise to answer
any qiie4tions concerning his political belief, tthe ('hairan's state-
ment prior to asking one question that thle witne-s "lias been inll con-
tenipl)t all day here" was thought by the court to be enough to indicate
to the wit ness that his objetionis were overruled and that thle conluiit-
tee demanded an a answer from him.1'-2
When the witness' intent is unclear, it is incumbent on the com-
mittee either to accept the claim or to ask the petitioner whether
he is in fact invoking the privilege."- ;
I/,.,fa,,lf Hi Wli(ch, FJfti, Ain, i m,, ,it ; I / pJi,,/ ,,bl(
A Fifth Amendment privilege against self-incrimination cannot
be asserted as to questions which are not incriminating.
Appeal rinil before a congressional subcoImmittee, a. witmis- was a1ed
to give his address. Ile refused, basingl his refusal to answer on his
Fifth Amendment privilege against self-icrimination. Thlie court
rejected his argument holding that while conceivable cases miight 1w
)v'esfented to illustrate how stating one's addivT.-, would tend to inrim-
inate. certainly in the unusual (.as, some burden is on the (lefenldant
or his counsel to sugge-t at some time. (ane place duringP isi interro-
gation (that is not to say al]solutely prove) how farl ordinarily not
incrinmi lnatinl might reasonably tend to b)e incriminating in their
special set t in 1 ,.4
While it may be that, in certain circumstances, a witnc-1,. should
explain why anll an\-wer to an apparently innocent question ighti
tend to incriminate him. certainly no such explanation is ie..*,t-;,rv
to szl)pp)ort a claim of privilege when testimony l)efore thle conmlnitt..t
is such as to make such expl)lanationi evident."'
A Fifth Amendment privilege against self-incrimination cannot
be asserted as to books and records kept in a representative
capacity.
The witnt-s was convicted for willful failure to comply with a: ,i1-
poena of the House of Representative- cominmmandi- hIimn to pr('iui'-
before one of its subcommittees certain records of tle Civil IT. ts
Congress. The evidence showed: Before i'.-ian,' of the subpoell.na tle
subcommittee liad reason to believe that thlie Civil Righlits Corigl-,'' wa-
q sulbversive organization and tliat lie waIs its executive -D, -
16 United S.tate. v. Kamn, 102 F. Suim. 757. 75.9 (T)D.C. 19.52) : -ke ols Coinn, v.
U'iited Staftes. 349 U.S. 155. 1'. ;-T70 (19550-5) Faij riui1, v. Un itfed .Stafe. "'!2 '2,i1 -
(9th Cir. 19.56). On similar ;-ri und-. an ncouittal i a dIir,.ted in IUnitefd ,ttc.f v. P.. .
Crime. No. T174-50 (D.D.C.. dveidrl\ Marih q. 1951).
102 Dafri v. 'United Sqtc.irs. 2199 F.2d 2.57, .2i2 (6th Cir). cert. denied. !W-1 V.S S 1',
(T1'.I ). This. however, was (lietmin. since the committee haind Li.-ii express iis r-ti r.
to answer questions involved in other counts, any one of which was sufficient to s-t:iJi
th ilndmnient Impoosed.
1'i Em.Fipak v. UTnited States. 349 U.S. 190 (1955.).
.If,1pimpsfon v. United State.x, 241 F.2d 222. 224 (0'-h Cir.). re'd. :r.-.. .S. 7 (1- )
(mem.).
M United States v. RaTcii, 96 F. S'ipp. 495 (D.D.C. 195kI).








tirv. At tlhe hearing, the clhairman of the subcommittee explained that
Detroit is a vital defense area and that thle purpose of the hearing was
to in vestigate Communist activities there.
Whllen asked whether lie would produce the documents called for by
the sulbp)oena, the witness stated( flatly that hlie would not. Neither at the
]hearing nor at his trial did he deny tlhe existence of the records
or hllis ability to prodlice them. lie based his refusal upon a claim of
his privilege under tihe Fifth Aiendllmelit.
The United States Supreme Court sustained tlhe conviction. and it
held that books and records kept in a representative capacity cannot be
the subject of the personal privilege against self-incrimination. Such
is the ca-se even though production of the materials might tend to
incriminate their keepl)er personally.166
"V, ;''er o/ Claim '
The privilege against self-incrimination may be waived in
several ways: by failing to assert it, by expressly disclaiming
it, or by testifying on the same matters concerning which the
privilege is later claimed.167
A witne-s testifying before the House Committee on Un-American
Activities concerning his participation in a Communist organization
admitted attending a Party meeting, but refused to answer questions
relating to the membership of certain individuals in the ('Comimunist
Party organization on the grounds of self-incrimination. Tle court
held that the witness had already incriminated himself by admitting
his attendance at a Communist Party meeting and that questions as to
the identity of other persons at the meeting would not further in-
criminate him.168
A witness does not waive the privilege by answering questions
which do not constitute an admission or proof of any crime.'"
Where the claim of privilege has been made with respect to
numerous questions, it should be considered to have been made to
a question asked in connection with those which the witness de-
clined to answer unless the witness makes clear that he is waiving
the claim of privilege with respect to that question.
In U ,,ed States v.laly,70 tlhe court said:
The questions here involved relate principally to whether or
not the defendant knew certain persons.
The testimony of this defendant before the Committee was
taken at liearings which extended over a 1)eriod from
July 12th through thle 15th. 1950, and were resumed Au-
gust 8th, 10950. The defendant's testimony was taklen on
July 14th, numerous witnesses having testified previously and
some subsequently. The transcript of the proceeding before
the Commnittee, particularly with reference to examination
a .llePhian v. nifted tnte.-q, 3.64 I'.S. 372. 80 (1960).
I'm.Vnipnk v. United *States, 349 U.S. 190 (1955) ; see also Hutcheson v. United State.,
369 U.S. 599, 609 (19621.
16 'lnit'd Staltes v. Singer, 139 F. Supp. S47, S52-53 (D.D.C. 1956), aff'd, 244 F.2d 349
(D.C. Cir.). rev'd. 247 F.2d 535 I >D.C. Cir. 1!57i) i ,)wr ciiriaini I.
M9 Iiiitrel States v. Costello, 198 F.2d 200, 202-03 (2d Cir.), cert. denied, 344 U.S.
874 (1952).
I- IM F. Supp. 495 (D.D.C. 1951).








of this defendant, shows that certain witliesses identified him
as a member of the ('onmmunist Party, active in its affairs, and
acti vely engaged with other members of the Communist Party
in furthering its orgal i zat ion.
It is contended by the Government that an answer that the
defendant did not know the persons about whom inquiry
was made could not possilvy incriminate himii. It is concluded(
that the answer tliat he (lid know such persons, or certain of
them, might under some cir"c.staiiTces be incriiiiiati-il',
insisting, however, that it was the duty of the defendant in
such circumstances to explain why such answer would be
incriltiiimitinig.
The testimony bv other witne-ses sliowedl that every one
of the persons, concerning -xheomm the questions here involved
were asked, were members of or affiliated with the Communist
Party. With federal statutes then in effect, making it a crimi-
nal offense to do the acts, to have the affil nations, or to conspire
with others in the doing of such acts, and witli numerous other
witne.-.ss- testifying that this defendant had been thus en-
gaged, it cannot rea-oiiably be doubted that the defendant had
good ground to apprehend that hlie would be pro.-cuted there-
for. Blau v. U.S. 340 T .8. 159. 71 S. Ct. 2"23. I atiny proscu-
tion in which hlie be charged with conspiracy with those con-
cerning whom lie was asked, it would obviously be relevant
and important evidence that hlie knew thfiem. aind that they
knew him. It is beside the point that such fact could probably
be readily established by the testimony of others. Thlie crux of
the question is that he could not be conmpelled or coerced in
admitting that he knew them. and revealing the source from
which evidence might be obtained that could be used against
hnin in any criliaiiI pl)rosecution. A witness oumiht not to,, be
required( to make an incrimiii i:tii g answer, and thus be put
to the hazard of losing the right to claim privilege as to fur-
ther questions which would elicit incriminating" ais*vrs. See
Rogors v. U.S., 71 S. Ct. 438. While it miay be that. in certain
circuinstahices, a witness should explain why an answer to an
a) )ppa gently innocent question might tend to incriminate him.,
certainly no such explanat ion is necessary to support a claim
of privilege when te,-timoiony before the Committee is such as
to make such explanation evident.
Where the claim of privilege is made with re-pect to numer-
m is questions asked a witiies-z, it should be considered to apply
Sto a question asked in connection with the questions to which
lie has mnad(le claim of privilege when he declinmes to answer
,-Ilrl. question without making it clear that hlie is waiving tlihe
claim of privilege with respect to such question lie decline-
to an Iswer.171
The privilege against self-incrimination attaches to the witness
in each particular case in which he is called upon to testify with-
out reference to his declarations at some other time or place or
in some other proceeding.
:" I,!. at 41!6-98.






.66

Allegations verified by a witness in prior litigation do not have the
effect of waiving the privilege.172
By the same reasoning the fact that a witness answered the same
questions before an FBI agent several years before did not prevent
his assertion of the privilege in a hearing before a Senate committee
investigating organized cri me.173
Pr'esumption. A gah'st Waiver...,
On the principle that courts must "indulge every reasonable
presumption against waiver of fundamental: constitutional
rights," the Supreme Court has refused to interpret ambiguous
statements of a witness before a congressional committee as a
waiver of the privilege against self-incrimination.
In response to a question concerning his associations, pe-
titioner expressed apprehension that the committee was
"trying to perhaps frame people for possible criminal prose-
cution" and added that "I think I have the right to reserve
whatever rights I have. The following colloquy then
took place.
"bMr. MOULDER. Is it your feeling that to reveal your knowl-
edge of them would subject you to criminal prosecution?
"bMr. EMs.PAK. No. I don't think this committee has a right
to pry into my associations. That is my own position."
Petitioners reply, it is contended, constituted an effective
disclaimer of the privilege. We find this contention without
merit.'i4
s *
At most * p)etitioler's "No" is equivocal. It may have
minerely represented a justifiable refusal to discuss the reasons
underlving petitioners assertion of the privilege: the. priv-
ilege would be of little avail if a witness invoking it were
require(l to disclose the precise hazard which lie fears. And
evenl if petitioner's "No" answer were taken as responsive
to the question, thle answer would still be consistent. with
;L claili of lthe. privilege. The protection of the Self-Incrimi-
nation Clause is not limited to admissions that "would sub-
ject. [a wititnes.] to crimilmil proseclition": for this Court has
repeatedly Nheld that "Whether such admissions by them-
selves would support a conviction under a criminal stat-
iute is iimmatterial" alnd that the privilege also extends to
adnmissions that may ojindv tend to incriminate. In any event,
we cannot say that the colloquy between the committee and
pet itionerl was sufficiently unambiguous to warrant finding a
wai ver lie re.175
In ITidefi.eon v. Trioteld .ftatesp.' the Court held a refusal to answer
on "diue process" ground(lS after the witness, with counsel at his side.
livequlivocally and repeatedly (lisclaimned reliance on the Fifth Amend-
ment. pri\ vilege against self-ilncrimination was not sufficient to preserve
tile self-incriminating aspect of his due process claim.'7 Il that case,
P poretto v. United Statesa, 196 F.2d ,392. 394 (5th Cir. 1952).
Marec/lo v. 7nitedl StateS, 196 F.2d 437. 445 (5th Cir. 1952).
1`'rn.spiak v. United Statcs, 349 U.S. 190, 195-96 (1955) (footnote omitted; omission
in ori4 final .
1:r. Id. at 197-98 (footnotes omitted ; brackets in original).
:369 IU.S. 599 (1962).
V7 Id. at 611-12.







11he Court further rolled that tle p,,-iible .1., in a State trial of ai claimu
uf this privilek.e did not excliie. tin ptitionler fi oii -rtir it
Tore the cu mmittee.
GRANT OI' 131 MI \'ITY
S1,,'tion 600-, of Title 1S, united States Cod(1, provides that:
(f. LI the c..,. of a(I/i ;w,'';,;dw, w'ho h/, 1,, i, or nig be called to
S.,-fy or piro,;de oetheir ;1for,.mtion at el., ,pi,, ,;, I before either
IIouNe of C ;onx,, s, 0/ oorn < o/m/f/' o' i/I V/.,b(eomM,;fftee of either
HouI.,, or ,if, j,.t (,eom0/ tt of /the /,'o o1/ I. a Ulted StafR.
d('NiVkt (ourt 8h,,1/ 1 ..s 1 word', ';th .,, "4. .'t' o (b ) of t.,.
f*;foi. Ilipon ti/n rcuet of t, dil (r/e op".;.', ep,..,f,,, of the
IIoi /s, of (Coiel, ,. or t/ c (ommi/t,' COf, in' d. (/i o/('d r 1,'Pi I ,F/
N/r/;I // d /el idUfl/ to f!'re l(,t;/,ioi/ 0y o ,," < olft/U ; o 'fOr fl'il/ ;onn. 'hi./h
he i,"".'w.,( to 0I)' or/ provide ,,, the b,,.U'; of h;/ pried/ f/e lgin;.t S'If-
;ir,,?mi'MiItioH lfu(th orid to b1 )',m, ( / ccf;/ec f.1 pUoN'ded in xvrf/o 0oti O
of tih lp.
b. Ihfo,. ;X..U;. // ,/ i. o,,(p iii,,, 11 ..ub.)s (./0o, (a) of ih ; .s,'rq;m a
I 7)od S'taoic d'(;.h i'ct f',o, //1uIl/I find fh/ft-
(1) in the aY,' of a proceeding!, before ]r(t/uic, 11o0. of Con-
/,,..,, the r, I/,,'.1' for' Nuc/ (In order/ h/. 1(en r oppi'o(1d by all
tii /(/i/ rc rote of U imn.ort!fy of the H/. /ileb"/ p[I '/ ,,t of that
IHom,' :
(2) in/ the 'i,/.,,' of /'roeeden/ l) for, (Q ,o/f;//0' or a
/IWfblommnitfce of (,;ith/r Ho,.., of ('o,/,, .i.fs ojr o joia /ifom-
,;ittie, o/f both llouo.. x. the '/uet for ,ic/Ih tie order h 6/ b, r,,
(i//O.I', ,1 / by n, 0 fl'a r iiit'roe of of/ 'o-fthitdS of t/he ml ,,, ,i Is
of the fuIll ,om ii aw ;tl ,i/l
(3) ten d for .xieh/i .I/, order ?',w. ,'n, d -. tihe Attorney (e/r ell d//,., ,'/ *, (
,'U;i not, of ain ;ite i/of to ,-, ,/U, ,/ the order.
C. Upo,,n flpf1'e(t'on of the Attorneuy Gcne)',l. the 1T',te1d StateS
1/;si'r.t eoi.'t .hd(1 defer i,(, /o'. ,/l,' of f/Iy orde',r Ind(e ,, ,,b.,iet/on (a)
of th;. N.teOli for Nweh p(i,"od. not lon!/cr th i t'/Iety/ days fl om the
date of the r(p'iNe..t for, .Ni./ or,',e /.U. f/ I tA ioimc (Ge' '<,'i/id mU/ N/'* "If!/.

Prior to ,II I)el 1N). 19701. at le'; i-f 50 sep:i rate statiit-,, l11.d
provision .oi.criiiii" the ar: itiii.. of imim mitv to witi-t.-. W itl tn f
enaetineiit of Sectioi..- ()001 et :.'ej. of Title 1l. suited States ('ode.
ti let.' earlier provisions were veli'.dled. s.t idardizinc" for the first lii,
Federal imimmnity mT-a-ures. In conl-olidatinlr th,.-v section' t rn-;ati, in
ilmmunityv, which )recluded pri's-eoution for any traicsaeti,,n or ati air
atl)olt wliich a witin"-- te.tilied. \\'s replaced Iv use i ,1 n 111"M Tie
ini iniiiiiinitv providl.1 for hbv tile inew '*tioIt is a IrT'i1it witli
limitations. "Ratlher than ,ii, a sul,-,,luenit related pi it-,icutiou, it
nats only to) -.ll)I)ivs. il allvny -,tli V,,,,'ittion. tlie witm.-- t"-tilol V
Iand evidence derive di didlectl or indirectly from that th-timiony. Evi-
dence obtained wholly iidiepenidentlv of immin iz.,l t.c-' iinV 1ii ,:1V
serve as a basis for 1) ',-i,'tinf1 the witn.-s for naeti% iti.- ;.id t .wI-
actions including tho-t, covered in his mwiij statements' S
!17Ail.li.'itlon of United States Senate Select C,,it',,ittoe on Pr-i. 'ital C i m,.i-i
Activities, ::;Il F. Sup,. l'27'. 1274 (D.D.C. 1'!7:;).







Although there was some question as to whether the use immunity
provided in the statute sufficiently protected a witness' right against
self-incrimination, the Supreme Court has sustained the immunity
statute (18 UI.S.C. 6001 et seq.) as constitutionally sound on its face.
In Kasti.g1 v. .',i;tel States,19 witnesses were called before a grand
jury. having been granted "use immunity." The witnesses refused to
testify nonetheless contending primarily that the scope of the im-
muniity proviided by the statute was not coextensive with the scope of
the privilege against self-incrimination and therefore was not sutffi-
cient to supplant the privilege and compel their testimony.
Their argument was rejected by both the district court and the
court of appeals, and the Supreme Court granted certiorari to deter-
mine whether testinmonyv told be compelled by granting immunity
from the use of compelled testimony and evidence derived therefrom
("use and derivative use" immunity), or whether it is necessary to
grant immunity from prosecution foroffenses to which compelled testi-
mony relates ("transactional" immunity).
The court found that if an immunity granted under a statute
is coextensive with the scope of the constitutional privilege against
self-incrimination a witness who has been offered the immunity is not
justified in refusing to answer questions on the basis of the privilege
against self-incrimination, and a judgment of contempt for refusal
to answer is proper. .
This statute, which operates after a witness has aiven in-
criminatory testimony, affords tlie same protection by assur-
ing that the compelled testimony can in no way lead to the
infliction of criminal penalties. Tlhe statute, like the Fifth
Amendment, grants neither pardon nor amnesty. Both the
statute and the Fiftlh Amendment allow the government to
prosecute using evidence from legitimate independent sources.
The statutory proscription is analogous to the Fifth
Amendment requirement in cases of coerced confessions. A
coerced confession, as revealing of leads as testimony given
in exchange for immunity, is inadmissible in a criminal trial,
but it does not bar pro-eentioin. Moreover, a defendant against
whom incriminating evidence lias been obtained through a
grant of immunity mav be in a st ronZer position at trial thIan
a defendant who asserts a Fifth Amendment coerced-
confe.sion claim. One raising a claim under this statute need
only show hfliat he testified under a grant of immunity in
order to s!i ft to thle goovernment the heavy burden of proving
that all of the evidence it proposes to use was derived from
leLitiimate independent sources. On the other hand. a defend-
ant raising a coerced-confession claim under the Fifth
Amendment imust first prevail in a volmiuntariness hearing be-
fore his confession and evidence derived from it become
inadmissible.
There can be no justification in reason or policy for hold-
ing that tlie Constitution requires an amnesty grant where.
acting pursuant to statute and accompanying safeguamrds.
testimony is compelled in exchange for immunity from use
1 406 U.S. 441 (1972).






69

and derivative I-i' wihen no suci aiinietv is ieqi red sc Iiei,
the government, acting without coloral h right, ,',,r,.e- a
defendant into inerimiiniatilng hiIIlf.
We conclude that the inun iDiitv provided )by 1 I 'S.(.
R 6002 ]a ve-, the waitns and the 1irio-,cuitorial alt horit ie, in
substanltially the :Amle position as if the \ it ,.-- had ('clainleed
the Fifth Amendment privile Tihe iiilimmuniity therefore i-
coextensive with thle privilege and sliffictes to stipplant it.1"
('oiift Fu, ('! on P+,r-c(f/ J[;)'n+fer;'ni

Once a congressional determination has been made to grant
immunity to a witness and the procedural requirements of the
statute have been met, the responsibility of the court is limited
to the purely ministerial function of issuing an appropriate
order. Neither the court nor the Attorney General has the power
to reverse a congressional decision to grant immunity to a
witness."
DUE I'lOCI'),I:

A witness appearing before a congressional committee is en-
titled to require of the committee: (1) A showing of its authority
to inquire with regard to his activities and (2) A showing that
the questions asked of him are pertinent to the committee's area
of inquiry.
Failure of the committee to properly advise the witness of the
pertinence of the questions when the witness so requests con-
stitutes a denial of due process under the Fifth Amendment.1"'
If a witness refuses to answer a question, the committee must
ascertain the grounds relied upon by the witness. It must clearly
rule on the witness' objection, and if it overrules the witness'
objection and requires the witness to answer, it must instruct
the witness that his continued refusal to answer will make him
liable to prosecution for contempt of Congress. By failing ad-
equately to apprise the witness that an answer is required not-
withstanding his objection the element of delibe,'-ateness nece-.
sary for conviction for contempt under 2 U.S.C. 192 is lacking,
and such a conviction cannot stand.183

d'" 1h. at 4,11-112 (footnotes omitted).
i-lApplication of I'nited States nae Select Committee on Presidental Ca,,-'.
Acetivities. :1,,.1 F. tir,. 127 (I.ID.C. 19>7:11.
T,2 Watkin. v. T united tatcfs. :'.7,4 V.S. 17S (1957).
1ip Emiil, v. United States, 349 U.S. 190 (197,5).
Ini Brdeni v. !')iifeld s atne. 272 .2d f.5 (; 1 t.th Cir. 1959f aft :' ( 2;5 1. 4.:i1 f l';l
-iwhre a witness stated that in order to expedite tIlh hearing he wn1l.1 *_'r>, he u nderrtod
thait thie committee was .i4 tin' him to answer each question he refused to answer, t h,
Court f',iil that the witness was in n,) way denieTd due process and his conviction ,a nwt
'ihieet to reversalt heca use thie committee did not. in fact. exp ressly dire'ct ( iii tr anillI
oa(lOh question.
On ianl .' .i.,,-il from a conviction for contempt 1t 2 Fonre .s ,tpd ~a 1'ir-r Amendlmeinot lprivileze to refuse to answer qlesiols Ir"... ti hi
li the committee art,,,''- v ter fit t that hi4 conviction should he revered I1 :a;-,
*.Tr i had (I I ladeI his ol)j(ctiol-st t) tI e tIsti s pI tto Ihin. he wI Iii hi'eocted to answ1 er the questions. Al'fiIr the I Iestion on which tlie u i ~i coutlt If t
iindictmentt was asked, tie ai,-11l:i lt said 'Asain thie l,'-i alielinnt : uiimke _:'_r4i4. ir
Ilo I 1have to repeat it 1eaOh time. or is it understood eaeh time ?' The I', Iir I i T -I I >1il
t t 'It is ,iiil,.r-ro d that youI are referring t to the first amendment.' 'I'.,. 8:. t 1rTeI>rr
sI .sii sted that if there was to he an tiuders'.liirL- as to the basis 'r 1 i I,- to a a r
there im1iiht also be an undertanildintr as to directions to tie apIpelhant t, ;uii +r. hr
i' irman asked the aoiueliailt if ihe nindorstooi d thIlt lie wlas I l. r, to anisw 'r ;i< tl i
Iai i'ant Ieplied. *I will nnderst,.ill that yon are dlir etin r lie to answIer falh ;n< fti+ie1
in id r to .-:I..,li ile tte o e will not e watint- 1 t i T hi I I the I .'..nir "s tim ?n|i
everybody lse' s time onl this.' Later the SInfif Di)i rector inqu irel d whet I ir the rec,, rd 1-






70


Cost it utoial a .al Statutory Pert;ie .y
In a prosecution for contempt of Congress two separate per-
tinency issues arise. The first is the requirement under the Due
Process Clause of the Fifth Amendment (constitutional) that
the pertinency of the question to the subject under inquiry must
be brought home to the witness at the time the questions are put
to him. The other pertinency issue (Statutory) arises from the
requirement that at a trial for contempt, the prosecution must
prove that the committee's questions were in fact pertinent to the
subject under inquiry.
A subcommittee of tihe House Committee on Un-American
Activities conducted earigs in Albany, New York, in
July of 19.53, and again in early. April of 1954.,s
** ~ .. ... *
At the openingof tle. Albany hearings in 1954 the Chair-
man stated that the subcommittee would "resume this morn-
ing the investigation of Communist Party activities within
the capital area.'" Hle ]nade clear that the hearings were "a
continuation of tlhe open hearings which were conducted in
Albany" in 1953. He pointed out that. testimony at the 1953
heanrinos had "related to the efforts of the Communist Party
to infiltrate industry and other segments of society in tlhe
capital area." "This committee," hlie said, "* * is investigat-
ing communism within tlhe field of labor where it has sub-
stantial evidence that it exists." '
** 8 : ** * . *"* *
The petitioner was not present on either occasion. He was
subpoenaed to appear before the subcommittee in Albany on
April 9, 1954. but, at the request of his counsel, it was agreed
that lie should appear instead before the subcommittee three
days later in the Old I louse Office Building in Washington,
D.C.
He appeared there on tlhe appointed day, accompanied
by counsel, and without further ado his interrogation bemnu.
The petitioner freely answered all preliminary questions,
rev-ealing that he was tlien twenty-four years old and a gradiiu-
ate student at the University of Pennsylvania. He stated
that his early education lhad been in the public schools of
Brooklyn, New York, from where lie had azone to Cornell
UTniversitv in 1947 for four years as an undergraduate and
two additional yea i's as a ,graduate student.
clenr tlnit in reppon,;p to each refiisal to nn.swer there hpid heen given a direction to
answer, and the apillnint -aid. 'I understand. My counsel and I understandl' The alpellalnt
maiv-dl the rialit to harv a specific direction to answer each of the questions to wtihh he
made nln1 4etinn and whlich hli refued to answer. IHe now asserts that he could not waive
tfhe. rfinirpinnt of being spv'ifivally rdirpeteri to answer each question. It Is requirpdi ths.t
the witness be oirderedil to answer n question, where an objection has been madei or a
r'ftir-il to answer has been stated. This reqiilreinit i* maninde so that it may be est.-ihlishlp1
1 v'%4ii1l loinuht. in a criiiiiiinal iifrin: tlon. that the refusal was Intentional and delilwhratr.
Tlil -ta toriiinIts of tlie nappllanrt clearly showed That he anlld his counsel were filly
iririnrmiel a nd thle reqilU'st to oi0it the specific directions to answer was intelligently nmude
bv t'., wppiollant. Tie wa,; in no isy p)rejll(ldiced. Di pl'roepss was In no way denied. If tlhe
\aier liaild been rilade at a trinl before a ciurt we are witliot doubt that no nssieniilnPit
of error e.ildl proplrlvh be nrodiat 'ri upon iermnlittin the waiver. Rmitlh v. U'nite1d ,tnfr,, 5
'ir. 1!l"li 2:14 I 2,1I ::S5 : fBrrlrr \'. I titeI St t'.* ", (i'. .i 205 F.2d 454. r.,rrtiornri
Iif-ii.',I. :146 U..r. 477. 74 S. Ct. :1.0i. 98 I,.Ed. :3 H.". : f .nrt v. rUnited Stattev ) Cir.. 19>5). 2C1
P.2f 924. We see no Interesi of ihlstie thba c:,11 f'm different rule here.
sI4 Infutrh v. Unite f.taIle. 367 U.S. 456, 45S (1961).
ms Id. at 465 (omission in original).







The subconinmmittee's counsel then made the following state-
Illent:
Mr. Deutch, during hearings at Alba iny last week, tlhe conm-
mittee heard testimony regarding the existence of a (omninu-
iiist Party group or cell operating among underraduates
at Cornell I diversity along" certain gri'aduates at ('ornel l
and in the city of Ithaca.
In connection with that testimony, tlie comnimittee was in-
formed that you were a member of one or more of tho-c
groups. If so, 1 would like to ask you certain Ialtters relating
to your activity there.
Were you a liemnber oif a "Ci amp of the (Communiist Partyv
at Cornell ?
The petitioner answered. "imdeir protest," that lie had
indeed beeii a menlber of ite (Comiununist I arty wliile at
Corniel l.18s;
**** *
While tlie petitioner's answers to tlie many (questions plut to
himn about his ownl activities and ll(l col(ict were thus fully
responsive, lie refi-d.(l to answer five (uies ions lie w:(s asked
concern othlier l)eop)le. HIe declined to give tlie i:I;ins of
the faculty membl)er wlho hIad bee a (Comniml.]At. of tle friend
who had made the "100 conttri)lbtion I to tlie Party.] of the
student wlho lia(l origillallyv aplproacIled him about joililing
thle 'Communist Party. and of tlie owneli's of thle house where
the meetings had been held. For his refiv-il to answer
these qui.ot ions lie was indicted, tried, and convicted.
The reason which tlhe petitioner ave tle subcommittee for
his refusal to answer these questions can best be lput in his
own words:
"Sir, I aml perfectly willing to tell about my own ;itivitii,
but do you feel I should trade my moral scruples by inform-
ing on someone else? * I can only :;iv that whereas I (1o
not wanut to be in contempt of thlie committee, I do not believe
I can answer questions about other people. but only about my-
self. * I happen to have been a 2-',.iduate studenit--tle
only one there, and the or0'a im.ztion is compi)letely defunct.
and the ind(lividual you are inter',.-ted in w:aint even a profes-
so. Thle magnitude of this is really beyond 'easn.
Thle chairlmain of the subcommittee ruled that it was the
petitioner's duty neverthele--.-; to answer the (questions:
"That decision docs not rest with you as to whether or not
the scope of this inquiry-as to whether or not certaili in-
dlividuals are important now or not. That is the responsibility
of we Repre.-,eitatives to determine. That determination c' r-
not rest with you. It mav be very true that the individuilnl to
whom you have referred is no longer a member of the Coin-
munist Party. However, that is a supposition on your part-
and a supposition which the committee cannot accept * *
I think that it is only fair to advise the witniess-a ga iii ad-
vise the witness-thliat any scruples he nmay have due to a de-
sire to protect friends and acquaintances, is not a legal reason
' Id. at 458-59 (footnote omitted).
62-125-76---6







for declining to answer the questions which are now being
put to you, and which will be put to you by counsel." 187
** *
As our cases make clear, two quite different issues regard-
ing pertinency may be involved in a prosecution under 2
USC 192. One issue reflects the requirement of the Due
Process Clause of the Fifth Amendment that the pertinency
of tlhe interrogation to the topic under the congressional
committee's inquiry must be brought home to the witness at
the time the questions are put to him. "Unless the subject
matter has been miade to appear with undisputable clarity, it
is the duty of the investigative body, upon objection of the
witness on groulndls of pertinency, to state for the record the
subject under inquiry at that time and the manner in which
thle propounded questions are pertinent, thereto." Watkins v
United States. 354 US, at 214, 215. See Barenblatt v Tnited
States, 360 US, at 123, 124. Tlhe other and different pertinency
issue stems from the prosecution's duty at the trial to prove
that the questions propounded by the congressional coinm-
mittee were in fact "pertinent to tlhe question under inquiry"
by the committee. "Undeniably a conviction for contempt un-
der 2 USC 192 cannot stand unless the questions asked are
pertinent to the subject matter of the investigation." Baren-
blatt, supra (360 US at 123). "[T]he statute defines the crime
as refusal to answer 'any question pertinent to the question
under inquiry.' Part of the standard of criminality, there-
fore, is the pertinency of the questions propounded to the
witness." Watkins, supra (354 US at 208). See Wilkinson v
United States, 365 US, at 407-409, 413; Braden v United
States, 365 US, at 433, 435, 436; Sacher v United States, 356
US 576, 577, 2 L ed 2d 987, 988. 78 S Ct 842: Sinclair v
United States, 279 US 263, 296, 297, 73 L ed 692, 699, 49 S Ct
26R. These two basically different issues must not be blurred
by treating them as a single question of pertinencyy."
With regard to the first issue, it is evident that thlie petitioner
was not made aware at the time he was questioned of the,
question then under inquiry nor of how the questions which
were asked related to uchli a subject. The chairman made no
opening statement, and the petitioner heard no other wit-
niesses testify. The resolution creating the subcommittee re-
vealed nothing. It was merely a general resolution authorizing
the creation of a subcommittee to act for the Committee.
Committee counsel simply advised tlhe petitioner that the com-
mittee hald previously heard evidence regarding Communist
activity at Cornell, and that he proposed to ask the petitioner
"certain matters relating to your activity there." As to his
own activity there the petitioner freely testified. When the pe-
titioner declined to give the names of other people, no clear
exi lanation of the topic under inquiry was forthcoming..
It is also evident, however, that the thoughts which the
petitioner voiced in refusing to answer the questions about
17 Id. at 460-62 (footnotes omitted ; omissions in original). ;
J, _- .






other people canll hardly be considered :i- the equi talentt of anl
objection upon the grounds of pertinency. Although he did
indicate doubt as to the iml)portance of thie q(ie-tions, tie
petitioner's main concern was clearly v ihis own conscientious
unwillingness to act as an inforiiier. It can 'Iardly be coI-
sidered, therefore, that the objections which the petitioner
made at the time were "'adequate, within the meaning." of what
was said in Watkins, supra (354 1 at 214, 215), to tri i'r
what would have been thle Sulbcomimittee's reciprocal obli-
gation had it been faced within a p)ertinency object ion'." Bareln-
)blatt, supra ((360 TS at 124).
We need not pursue the niatter, however, be';e-a'. inll ally
event, it is clear that thle (Government at the trial failed to
carry its burden of proving the pertineic,.e of the questionl-.
See Bowers v. l iited States, 92 App I)(1 79. 202 F2d 447. 452.
The first step in plroving I m I collponelI)t of the offense was to
show the subject of the subcommittee's inqiuirv. l ilkinson v
United State- 8, 3>5 S. at 407. As related above, the Govern-
mient offered documentary evidence of statements made byv
thIe chairman of the subcommittees at two hearings in Allbm iv
which tended to show that those subcommittee, were investi-
o'ating Communist infilt -a ion in the Alla iy or "capital" aPri:" .
particularly in the field of labor. The Government pvre-
sented one witness who test i fied that the petitioner's h.':tirintr
w\as a <'ontinuation of tlhe Albany h.18i iw-s, and that tlhe sub-
ject of thlio-e he:i rings was Co(mmunist infiltration i tlhe
Albany a'e.a. Ile disavowed any imniplication that thlie topic
under inquiry was Communism either at Cornell or in edu-
cational institutions generally.
Yet the questions wliichli the petitioner wa + convicted of re-
fusing to ari,:v er obviously lIlad nothiiina to do with the Albaiv
area or with (Communiist infiltration into labor unions. It can
hardly be seriouislv contended thalit (Cornell University is in
the Alb:iilv area. Indeed, we nmia take judicial notice of tle
fact thliat Ithaca is move than one l(,idmlred and sixty-five
miles froni All '1iV. and in an entirely different economic and
'eoyra>plhic arei ol New York. Tlie petitioner was iked noth-
in about Albany or the All;inv area. So far as the recor-d
shows. he knew nothing about that subject. IHe was asklIed
nothing about labor or labor unions. So far as the record<
show-, lie knew nothing about them. lie was asked notliinii
about any pos-ible connection between (Cornell or its gr;iduate
school and Conmmuni-t infiltration in Allb;myv. Yet the peti-
tioner was bNsically a coolper-tive witn,-'., and there is notl-
ing in the record to indicate that. except for irivin" tlie
names of others, hlie would not have freely answered ;ily
inquiry the subcommittee wished to pur-lie with respect to
the-e subjects. It is true that the tranlc.ript of the test imony
of two witfiesses at the Allba ny hearings estallishled tl'ir,
in addition to testifying alx-mt Communist infiltration into
labor unions in the Albany are;,. they had been willingly ledl
into some test itnony almut Comniinisnt activities by the peti-
tioner and others at Cornell. But that excur-ion can li:irdlv







justify a disregard of tlhe Government's careful proof at the
petitioner's trial of what the subject under inquiry actually
was. The pertinence of the interrogation of those two wit-
nesses is not l)efore us. The pertinence of the petitioner's
interrogation is.
In enacting 2 USC 192. the Congress invoked the aid of
the federal judicial system to protect itself from contumna-
cious conduct. Watkins. supra (354 IS at 207). "-In fulfillment
of their obligation lund(ler this statute, the courts must accord
to the defendants every right which is guaranteed to de-
fendants in all other criminal cases." Id. 354 U.S at 208. "One
of the rightful boasts of Western civilization is that the
prosecutionn] has the bIrden of establishing guilt solely on
the basis of evidence produced in court and under circum-
stances assuring an accused all the safeguards of a fair pro-
cedure." Irvin v Dowd, 366 US 717, 729, 6 L ed 2d 751, 760, 81
S Ct 1(i39, (concurring opinion). Among these is the presuminip-
tion of the defendant's innocence. Sinclair v United States,
279 US, at 29(6, 297; Flaxer v United States, 358 US, at 151.
It was incumbent upon the prosecution in this case to prove
that the. p)etitioner lad committed the offense for which he
was indicted. One element of that offense was the pertinence
to the subject matter under inquiry of the questions the peti-
tioner refused to answer. We hold, as a matter of law, that
there was a failure of suchl proof in this case. Sacher v
United States, 356 US 576, 2 L ed 2d 987, 78 S Ct 842; see
Sinclair v United States, 279 US at 298,299; Braden v United
States. 365 US at 436,437.
We do not decide today any question re.,pecting the power
or legislative purpose of thllis subcommittee of the House
Un-American Activities Committee. Nor do we reach the
large issues stirred by the petitioner's First Amendment
claims. Our decision is mide within the conventional frame-
work of the federal criminal law, and in accord with its
traditional concepts. In a word, we hold only that the Gov-
erinment failed to prove its case.18S

SIXTH AMENDMENT
In all criminal prosecutwJis, the accused shall enjoy the right
to a speedy and publir tr;al, by an imnpartal jury of the State and
district wherein, the crime shall have b,,n committed, which district
shall haec been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with the
,'';/(n.s'ses against him; to have compulsory process for obtaining
W,;tnesses in his favor, and to have the assistance of counsel for his
defense.
REPRESENTATION BY COUNSEL
A congressional committee hearing is not a criminal proceeding,
therefore, no constitutional right to counsel exists.
"' 14d. at 467-72 (footnotes omitted: brackets tin original).








House Rule. XI 2(k)(3) provides timit witlie-es l e-f I;ie
hearings may be accompanied by coiini.-t.o.
In the Senate the p)rivilege of a witne-, to tave advice (4f ,coi-.l
depends upon the committee and tlieir ilel.s llNay vary gI'-atly. "lie
general practice of Senate comimilittees is to perlIlit co' MI.'l witIl I limited
privileges.
A committee rule which gives a i\itness the right to advice of
counsel does not confer upon counsel the right to engage in oral
argument with the committee. However, when counsel is attempt-
ing to raise an objection to the procedure, such objection can he
ignored only at the risk of having a subsequent contempt prosecu-
tion of the witness dismissed because the committee failed to
observe its own procedural requirements.
In Y ll;i v. niI(d (1fa ,tes.
Yellin was summlioned to appear as a witmns-- before tlhe I Iou-,
Conmmittee on Vn-Aimerican Activities which w:is inv.-tiititug tlie
infiltration of (Colilluniists into the steel induilstrv. Yellin's counsel
telegralphed tlie general comis.-e] of thie committee, rlequestilln tlat
Yellin be permitted to tstifV in anll exectivite .csion ,ean-, that
would avoid "exposing wit, s-,s to publicity'". Without autilori/z:ition,
the committees staff director replied by telegram tI i:t the reqj.n-t
waz denied.
At the beginning of the laring -,veral daI later, Yelin's cudl-',
tried to have thlc,-e telegra,- read into tlhe record: but this reql,'-t
was denied and neither Yellin nor his counsel wai- penritted to
discuss the sulbject. Withliout speci fying tle committee' e iiite efuisal to Iea v
hini in executive se,-'ion as tlie re,-nn, YIellin refled(l to : -,.we qU'-
tions asked hiiii by thle co inittet,'. and lie v'as indicted for violati tL
2 U.S.c. 192.
At the t.ial Yellin contended that tlie committee liad violated its
own Rule IV. which l1)lprovides that wit,,--l,, -a1,ll )e intefliIted in
executive ses-ion, if a majority of thlie committee believ-. tliat lil-
)ublic interrol ;ition nigiht "(,endaner national -cimi.itv or unui, -tlv
injure his reputation, or tile replltation of other imndivi(Idual-". but
Yellin was convicted and :-,ntenced to a fine and impris,)nmnlint.
The Supreme Court reversed the conviction holding thliat on tlie
record in tins ca-e. it appeared tliat tle coinmiitte.r violated its
own rule bI)V failing to give consideration to tlhe qpll.:tio interrogation inll publ)lic would injure Yellin's reputation and by
failing to act on his request that lie be interrogated in exve-,itive
session: and(1 that the conviction for refusal to testify in pull;dic ":Al-
not stand.

CONl-'TONTATTOXN, CALLING. AND ',O.-r.. NATIONIN OF AiIIV \I '\-,-I"
A witness has no right to confront or cross-examine other
witnesses appearing before the committee. Nor does he have a
right to call witnesses in his behalf. If the committee choose'
to extend either or both of these privileges to a witness, the priivi-
'- Yelling v. United .Rtate, 374 U.S. 109 (196.).
The dissent notpdl thnt Pven thoiiugh the committee mnr rofi!s< to hear emnwl' rvn-
mont. the witness cannot be 1deprived of thI right to raise tho 06i-'. iii-, l li lf. YolHii V.
United States, supra at 13.' (dissenting oiiiiliin).






76


lege is subject to such restrictions as the committee chooses to
impose.19"
In 1968 a Senate subconmmittee was conduct iIIgr an investigation pur-
suant to a Senate resolution authorizing a full and complete study
and investigation of all other aspects of crime and lawlessness within
the United States which have an impact upon or affect the national
health, welfare and safety and of other subjects.
A subpoena was issued directing Fort to appear before the sub-
committee. By letter Fort's counsel acknowledged receipt of the sub-
poena and submitted the following requests to the subcommittee:
Hon. Chairman and Members of the Subcommittee on In-
vestigations of the Committee on Government Operations of
the United States Senate:
My client, MAr. Jeff Fort, lias been subpoenaed to appear
before this committee concerning an investigation of the
Woodlawn area job training project, Chicago, Ill1., funded
by the Office of Economic Opportunity. On behalf of
Mr. Fort, I hereby request and demand:
1. That each person who has made statements or presented
evidence before this subcommittee, either orally or in any
written form, including by affidavit, which tends to defame
Mr. Fort or otherwise adversely affect his reputation, and
any persons who shall hereafter do so, be called to appear
personally before this subcommittee and at such time to be
confronted personally by Mr. Fort and his undersigned coun-
sel, after reasonable notice to Mr. Fort and said counsel of
the time and place of such personal appearance by each such
person.
2. That the undersigned counsel for Mr. Fort be permitted
to personally orally cross-examine, in a reasonable manner,
said persons described in paragraph 1, above.
3. Mr. Fort also requests and demands the right to present
additional evidence as to the issues described in paragraph 1,
above.
Respectfully submitted.
MARSHALL PATNER
Attorney for Mr. Jeff Fort.


On July 9, 1968, pursuant to the subpoena, all)pellant and
his counsel appeared before the Subcommittee, and at that
time the chairman ruled on the requests. The chairman ruled
that the first request would be granted in the discretion of
the Subcommittee upon appellant's request for a given wit-
ness. The second request was denied as being unauthorized
under the rules of the Sublcommittee. A ruling on the third
request was deferred until after the appellant had testified.
The chairman then asked appellant to state his name and
appellant did so. However, when appellant was asked to state
his address, his counsel interiected that hlie must instruct his
client not to participate further in thlie proceedings without
r 'nUied RinteR v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied. 91 '. Ct. 2253
(1971).








the right to cross-exaiiiiiation. The chairman again denied
this request and appellant was again :.-.ked to state Iis
address; thereupon the appellant and his coiiiinel witlidrew
from the hearing room.'"1

Fort was convicted for Contempl)t of (ogil 'res. In his appeal, lie
argued, nf;Cr ala, that the subcommittee errioneousiv wilthie11 Ill is
constitutional rights to coiif ront an(ld cross-examinei those whom lie al-
leged had defamed him and to introduce evidence in hiis ownvl behalf,
and that his refusal to te-tify xvW;is tliereby justified. The colirt hlield
that:
Tle right to present evidence in one's ownii behalf and to
confront and cross-examine one's accll-te-'s are rights designe(l
to protect the individual's interest when ithe Government
seeks to impose criminal sanctions upon lilm. But the plain
fact is that the (Congrs.::ional investigation witli whichli we
are here concerned is an investigative P)ro1,01eelin and ot
a criminal proceeding and in such proceeding C(ong'ress is
not empowered to adjudicate criminal s iictioniis on the wit-
ness. These are the distinguishing features of a congressional
invest igation that cause such proceedings to be outside the
guarantees of the due proce:-s clause of the Fifthl Amend-
ment and confrontation right guaranteed in crimniinal pro-
ceedings by the Sixth Amiienldmlent.192
Then followed a discussion of coilgressional plrecedenits:
The right of cro.s-exa i nation bas in t!ie past been granted
to some witnes.,s in front of congr-essional investigation
committees, specifica:llyv during thlie Army-MN(Carthv hearings
of 19.54. Special rules for this nmiusii:i1 proceeding were in fact
adopted by the Committee on Government Operations. within
a limited right of crnss-.x:mination granted to Senator Mc-
Carthy (who was implicated and whlio appeared as a witne-s
at these particular hearings). See S. Rep. No. 2507. 83d
Cong.. 2d Ses-. 2-3 (1954). However. the rules adopted for
that hearing specifically provided that "[b]ecaise of the
peculiar nature of the current controversy and the unusual
problems created because of the individuals involved, these
proced(uInral rules are not in any way to establish a
precedent." * *
Analogous authority may be taken from thle proceed re, fol-
lowed by the committees of thlie House of Representative!.
There is no provision for cross-examination by a witness in
front of a Hoivue investigating committee. See 3 Hinds' Prec-
edents 3 1768 (1907). However. House comminittees have on
occasion allowed witnesses to cross-examIine. A review of
thle precedents indicates that committees of Congress have
allowed cross-exami nation of witn esses by members or by per-
sons who were not members of Congress in certain spe'i.al
types of proceedings. The-e include impeacillment tri:ais.
investigations looking toward impeachment, proceedings in-
'm ird. at 674 (footnotes omitted).
1 Id. at 678-79 (footnote omitted).







volving the privileges of a Member and when a committee
is directed to determine whether there have been violations
of the election laws. Such variances in committee procedures
from the procedures followed here are based on substantial
differences in the nature of the investigations, are permissible
under the power of a committee to adopt rules of procedure
it considers to be appropriate for thle examination of witnesses
in a given investigation and do not help appellant.
This is merely an investigation to determine and report the
circumstances surroundinc- the expenditure of moneys ap-
propriated by Congress.193

SPECIFICITY OF QUESTIONS
One cannot be held guilty of criminal contempt for refusing
to answer a question the intended scope of which is so uncertain
that if he attempts to answer it truthfully, according to his
understanding of the meaning, he runs the risk of being indicted
for perjury because others understand it differently.194
While appearing before a Senate subcommittee, a witness was asked
whetherr lie was a member of the Communist conspiracy" wheii lihe
wrote certain books which had been purchased by the State De-
partment and distributed in United States Information Centers.
He was convicted for Contempt of Congress but the court of ap-
peals reversed holding that:
The Sixth Amendment to the Constitution provides that in
all criminal prosecutions the accui,,ed shall be informed of the
nature and cause of the accuvsation. So, also. Rule 7(c), Fed.
Rules Crim. Proc. 18 U.S.C.A. This required in the present
case that the question set forth in the indictment be definite
enough to enable the accused to answer it with knowledge of
its meaning. Unless this is required one who desires to answer
a question truthfully 'an have no assurance of beiliff able to
do so because of uncertainty of the meaning attached to it by
the interrogator. In Um ted Staftes v. Lattimofre. 94 1.S. App.
D.C. 268, 215 F.2d 847, we held void for vagueness an indict-
ment charging the defendant with peij ury in denying before a
congressional committee that he was a sympathizer of Com-
muiinism or Communist interests. We held that the accused
was unable, and therefore could not be required, to defend
against so vague a charge. TIhe principle applies where the
question is so vague that the witness is unable to answer with
knowledge of its meanincr. See also. Tr'ib v. Tf;tfr', State.,
IS U.S. App. D.C. 43.232 F.2d 43.47. ***
One cannot beheld guilt\v of criminal contempt for refusing
to answer a oiestion the intended scope of which is so un-
certain tliat if he attempts to answer it truthlifully. according
to his understanding of the meaning, hlie runs the risk of
beinz indicted for perjury because othliers understand it
,i ifferon tly.19.

fn d f t C Es-,1 ffontnnotp nmitterl : brackets in orlivlnal. .. ..
wr OE(onnnr v. United RtnateR. 240 F.2d 404 (D.C. Cir. 1956). :
rTd. at 405 (footnote omitted).. -







Ill respolndinglr to the (Goverlieintiis c) itenItioI thIat Iv failing to
complain of the vagluen:., of the qyi-tion b)efo)re ti' coriiiiilt.,, li
could not later raise the isslle in Illis defeii-, at li- trial f' oitemptllt
the court said:
We dealt with a similar plotflell ill ;o,, v I ';t(, .S,/,..
92 1w.S. App. D.(. 79. 2-02 F.2d 447. w44, er r e we Il tllla ttlih
question of pertinencylv could l1e raised at tlie trial, tlolloghl it
had not been raised before tlhe commiiittee. We pointed out I hlat
the Fifth Amendment privilege against If-icrinination is
a personal privilege which must be :-,asonably :,---'rtevd, el-,
it is waived, but that pertinelcy of tlhe qn.-l ion is an l.--. i ial
element of the crime of contempt and 111mst lbe proved at tlie
trial. It is true that pertinwlency is m11ide aln -,,.1 i:i1l element
by the statute defining the crime, while detiliteiil.-, is n * *
But the Sixth Amiendmnent to thel, Coistitit ion nmal,' definite-
ness an essential element of every erii ,. For this reason
definitenss. as well as pertinency, mutist appear at tlie trial
itself.196
Id. at 405-06 (footnote omitted).














INVESTIGATION OF TIlE IXEC( TIVE BRAN( 'I I LA( K
OF JDRICIAL PRE(C'EIDENT
Against the power of the Congr'-s to s.trll'e tlroljh its inve-tira-
tory process information relevant to its legislative ,eponsililit i-. ad
its power of oversight as to the administration of the laws. I i. lwi.i
proffered the doctrine of "execuItive privilege,." l his "privilege" 11.1i
been invoked by the President to refuse to rele;ite certain iniformilatio
to congressional committees or to a Houlse of the (oirn-v',-- or to lpro-
hibit an executive branch person from tf.-tifyinlg before committi.-.
The doctrine has been raised in situations when it lhas I, I alle'wed
that the "use of the power is nec,.-*-rv to exercise. the Pl',-:idelt's I
Executive functions effectively. .<.. where it is requir.ie for tlie Pr, er
conduct of the foreign affairs of tilhe nation or in tlhe interest of
military S.ecurityv. or. geneiralyv. for thle fuirtlernilce of thle eficir.,v
and integrity of the Executive branch. Such as the -;,f.r.i,:)ridins of
frank internal advice and discussion of information received in con-
fidence. of source, of confidential informationo. of ieNliods of inst i-
gation. and of the reputation of po-ihly innocent per is 1ro ',,1i til,
disclosure of unreliable accu::itions"*1''
On occ0';sion. an executive bralich person liha refu,-i1 to iapp(;r
before a conigres-ional committee 1111der tlhe compullsio of .a -ii1-
poena. but, has treated the action as aln invitation to a pi r nnid Ihas
stated that hlie would do so voluntarily.
The basic questions concerning the extent of executive privil,-
as it applies to conir.--ional reque-ts for iniforii:tition frlIt tii c V.Ex-
ecuttixe remain unresolved. The Supreme ( Court decisions in V i'/,d
States v. NYioif" specifically disclaimed deciding wlietlier or t,
what extent the doctrine of executive plivi lege could I)e 11-i to wvith-
hold information from the Conre-. There i- little lea aitlio'itV
on the scope of Con,''tc authority to obtain inf1orimntiom fi',,Ni ie
Executive. No executive officer i:; ever beetn rite,1 for coitepllt of
Con :es-. The reason for this lack of pi ,' ,dent is tl,;it moi-tlr(-
sional requests for information from tlie Executive have Iw.t srf',.,'
informally.
A Senate Committee Print entitled "Refusal- byv tlhe Tx-,-ttive
Branch to Provide Information to tlhe Con-r,-s 1964-197.3." S.il-.in-
mittee on Separation of Powers of tlhe Commiittee on thle Judiciiarv.
IT.S. Senate. 93d Congress, 2d Session, November 29. 1974. I r,'-
a survey of executive branch refu-;lb to provide information : to, t01,
Congress. The survey show- that mol,-t reluctant executive I ir.'i
witnesses who are rett iested or who are subploen aed to ap ar 1 ,fotre
a contgressional committee generally refu-e' to tt-tifv on t',e ,i
of executive privilege prior to their formal appear F:! ,' .fr1 tli1
1 Kramer and Marchqe. *Ixo,.-.tivp Privi1eP-A + ti, 1, of the Period1 05:: 1 5 2
Ge" Wi'h T.Pr, Q?7 0 _,.fiio (l'i;1.) (footnot omitt d).
S418 U.S. 6,.3 (1974).
(SI '







committee. To reach a mutually acceptable compromise the committee
and the executive official involved then usually negotiate on the scope
of tihe desired testimony or documents to be presented.
Congressional committees hav(e not yet adopted formal procedures
for handling assertions of executive privilege. Since no executive
official has thus far been cited by the Congress for contempt, the
appropriateness of congressional practices for ruling on claims of ex-
ecutive privilege or of any otlier objections to testify made by the
executive official remain necessarily speculative.199


i9 Jurney v. MacCraoken, 294 U.S. 125 (1935).













APPENDIX



SUBPOENA AD) TESTIFIC ANDI)UM

U,,ITrED) STATES OF A MERICA
CON<;Il;ISS OF TIlE tNITEDI) S'TAvI S
To -
(name of pirsoui)
S(---------------------------------- renting:
(address)
Pursuant to lawful authority. Y)OU ARE IIEREBY CO(AM-
MANDED to appear before the Senate (C'onmmnittee oni ------
--------------- of thlie Senate of the I Uiited Stat-. (on Fort l wi li
(name of committee)
-----------, at ------ o'(Clock _.in.. at their (committee rowol,
(date) (hour)
-------------I, Senate Offic( Building, \ ashinlton, I).C.. tlien a;1,d
(number)
there to testify what you may know relative to tlie sul)bject m1atte(rs
under consideration by -alild committee, and p)roduc(e your p),.'-,nal
financial records for the period ------------------, to date, inc'liid-
(date)
ing cancelled checks, check stubs, d(leposit slips, 1 I ;Ik statements, record-
of loans, securities, insurance policies anld insole tax returns. toyetler
with records of all busintv--,e or enterIp'i)-,i, in which you have o(r have
had an interest.
Hereof fail not, as you will answer your default m(lunder 1ie paiii- and
penalties in such cases made and 1)provided.
To __----------------------------- to serve and return.
(name of officer)
Given under my hand, by order of the committee, this -----
day of -------------------------------, in thie year of our Loird
(month)
one thousand nine hundred and-----------------
(year)

Chairpn,. Senate Commi ttee i- ----------------------


(83)

















SUIPI)()INA DIC)Kl(S TE('[U'AI

Pursuant to lawful authority, you are h/ 'byq ( 'ld .iI III d to fliris 1;1
to the ------------- o0n _-------------at ---- at their colmiti(,e
committeee) (date) (till e)
room --------------------,------------- Wasingtol, i).('. 2i.'(._.
(room number and office hi!i1i_
pursuant to ---------------------ally andl( all records a)pp)ertainii'Ig
(authority)
to or involving" S(- - ---. ll( records to i-l--de____
(subject)
within your control or custody or within. Vour lilealns to pro1n)-,.
Hereof fail not, as you will a !\\er your default under ttle paills
and penalties in such cases iii:idle and )provided.
To rule to serve and re i rn.
Given under my hand. by order of thlie (committee, ti i- -- ---.
(dOth
/S./
(dliinmuial.


I S.














PETITION FOR WRIT OF MIABEAS (()RIPS AI)
TESTIFICAN I)1DM
In Re: Heariinigs of the Special Subcotmmittee on Intelligreice. ('Com-
mittee on Armed Services, Ilouse of Rel)Jpt- ntativ,-.: Mi:' No.
94-73.

PETITION FOR WRIT OF IHABEAS C(ORIPtS A) Tl.-1 IAIM
The Special Stilcomiitte on Intelligenice. (Committee on Akrmed
Services. House of Representatives, by its (Chiairman, ,le.ft fully rep-
resents to the Court as follows:
(1) One George Gordon Liddy is a n,,,e-:;ry witnios at hearings
before -aid Subcommittee.
(2) The said George Gordon Liddy is currently in tle eiistodv of
the United States Marshal, District of Columbia, and tlhe Sipl)(rin-
tendent, District of Columbia Jail.
Wherefore, the petitioner moves that this Court issue a Writ of
Habeas Corpus Ad Testifica udum. directed to the United State-, Mar-
shal, District of Columbia;: and the Superintendent. District of ('o-
lumibia, Jail, ordering the release of the said Geomrge Gordon LiddI.
into the custody of the said United State- Mai-"il for the District o'f
Columbia, or into the custody of one of his authorized deputi,.-. to
testify before the Intelligence Subcommittee relative to the above-
captioned matter.
LUCIEN N. NEDZI.
Chainman, Special Subcommn;ttee on 1.fellig, nre.
Let this Writ of Habeas Corpus Ad T,-tifi-indum issue as of this
16th day of July 1973.
JOHX J. SIICA.,
C(7 ;,-f Jilye.

U.S. DISTRIC'r COURT FOR TIIE DISTRICTT OF COLUMBIA
In Re: Hearings of the Special Subcommittee on Intelligence. (C'om-
mittee on Armed Service-. House of Repr.-t-etative-: Mis-. No.
94-73.
To: United States Marshal. District of Columbia: Suiperintendenit,
District of Columbia Jail.
You are hereby commanded to produce the body of (C,-ogr (Gordon
Liddy, by you imprisoned and detained, on Friday. July 20. 1973. at
10:00 a.m., under safe and sec ren conduct 1x-fon' the Special Suboin-
mittee on Intelligence. Committee on Armed Service-,. I ou-, of Rep-
resentatives, Room- 2337 Raylbun Office Building, W.shinrton. 1 ).('..
for the purpo-e of giving testimony before said SuIcxoI mimittee. ;Td
after said prisoner shall have given his testimony on tihe above 1i.'1t-


62-125-76---7





88

ter, that he be returned by the said United States Marshal for tilhe
District of Columbia, or one of his deputies to the custody from
whence he came.
Witness the Honorable Chief Judge of said Court on 16th day of
July, 19 73. .. .
July, 1973. JAMEs F. DAVEY,
: 'Clerk.
By JAMES P. CAPITA.NIO,
Deputy Clerk.












FORM OF A RESOLUTION OF ARREST OF WITNESSES TO
APPEAR BEFORE A 'O )MMmITTIE. AI))ITEI) lB TIFiE
SENATE IN 1951
Whereas the Senmite (Comiittee on --------- lihas reported
(name of committee)
to the Senate that subpenas have beelln issued for ----------------
(names of ,'r-, ,)
and that tli-,.t- persons are iiportalit wxith.-- nec.-.-ary to thie suIc-
cessful conclusion of inquiries Ibeinlg lcoliducted )by the commilittee !)Iur-
suiant to Senate Resolutioi ....... _ _('ong ,s. :,. -.-sion. a-d
tI hat the said persons haave not 1een locaate( for sd.r\ice despite (ili ieJit
,lP('rch on the pairt of pei -onls em)ployed byv the colm 11111ttee, atlod pea1(e
officers assisting the committee and that thereafter new sulbpellas (call-
ing for the appet rance of these persons were haniided to tlie Segieiit
at Arms of the Senate, pursuant to tlie policy recoimienilation of tHie
------------------_ C('olmittee of the Senate, with the req(Jest that
(name of committee)
hlie endeavor to make service of tlw.'-( subpenas through all the facilities
at his coinmand and that tOe Ser,-reai t at Ar ms. after using great lii-
genice inl endeavoriiing to locate the .,,ai( witds...s and to :.-rv\e te lie has
repl)orted to the chairman of the committee that lie hliad been utiable to
effectuate service; and that thle comimiiittee has reasolnal)le cause to Ibe-
lieve and does believe that the nailed persons will not appear in re-
spolie. to subpenas Ibut are in hidling o" have left the unitedd States il
order to evade the service of siubpl)enas upon them and will continue to
be unavailable for service of sibipeiwia.. upon theml in order to avoid
testifying before the committee: and
Whereas the appearance an(l te-timonv of thlie vitiie--f., nalmJed
before is material and nie,(s:.,i ry inl order that the commiiiiijttee may prop )-
erly execute the functions assigned to it and nmiav obtain informniatiol
necessi rv as a 1 asis for p)rop,-ed legislation : It is therefore
hle.,woled. That the President of tlie Senta:te issue warrants co()Ii-
manding the Sergcanit at Arms of the Senate. or such p)erso1, "s as maV
be Cdeputize(d by him,. to take into custody the bodies (of
--- -----------; and to bring thle said persons before tlie Senate
(names of persons)
C(omminittee on ---------------- at WVashin-rton, lDistrict of ( 'ol 1b1ia.
(name of committee)
or if the said committee be no longer in existence wlxie the a l.:t is
made. before the bar of the Senate or such appropriate stanli(ng co-
mittee as the Senate may designate. then and there to answer suchli
questions pertinent to the matter under inquiry as the said committee.
the Senate itself or such appropriate committee as the Senate itimay
designate;:
That. for the purpose of executing warrants issued in accorla !n-1,
with this resolution the Seraeajit at Arms of the Senate may by all-
inclusive order or orders deputize all law-enforcemient officers of tin
Federal Government; and
(Si)





90

That the Senate Coimimittee on -- ------ the Senate
(name of committee)
itself or stich appropriate standing conmiiittee as the Senate may desig-
nate, may discharge any of the persons taken into custody under the
authorization of this resolution upon proper assurance by recognition,
or otherwise, that he will appear to give testimony when required to
do so. The coimniittee, the Senate, or such appropriate committee as the
Senate may designate, may require such assurances as it deems neces-
sa ry, not to exceed $2'5.000 for any one witness.
For tlhe purpose of discharging any person from custody and order-
ing assurances, one member of the said committee, or of an appropri-
ately d(lesignated committee of the Senate, shall be a quorum.













FORM OF A RESOLUTION OF ARREST OF WITNESSES To
APPEAR BEFORE THIE BAI OF TIlE SENATE, AI)OPTI)
IN THE SENATE IN 1934

Whereas the conmni ttee of the Senate, elected pu1)rsualnt to S. R es.
-------- ------( Coress, ''.iOl. has submiIitted a rel)ort
to the Senate :and
Whereas it appears from suchl report that--------------------, of
-(name of person)
------------------ -------- was on d--y--------------------- -- ily
(name of city and state) (date)
served with a subpoena to appear forthwith before such COIllmlmittee.
in Washington, I)istrict of (Colmtib)ia. and then and there to testify
relative to subject matters, and to produce specified files. re('o'ds, and
books, pertinent to the matter under inquiry, and
Whereas it appears from such report that the .aid--------------
----------------------- lhas failed, declined, and refllsdl in dis-
(name of person)
obedience of such sublpenas, to )produce all files, records, and books:
and
Whereas the appearance and testimony and correspondence. rec-
ords, files, and books are material and nces:a ry in order thliat the coli-
mittee may properly execute the functions imposed upon it and ob-
tain information necessary as a 1ia sis for such legislation as the Sell-
ate mnay deem necessary. concerning ----------------------------
(subject matter)
Therefore be it
Z?,.l,.11*, That the President of the Senate issue his warrant coii-
manding the Sergeant at Armns, or his deputy, to take into 4uistody
the body of the said -------------------------------- before tlhe
(name of person)
bar of the Senate and to bring with him the correspondence. menmo-
randa, books, files, and records referred to and then and there to
answer such questions pertinent to the matter under inquiry with
reference to facts regarding correspondence, menmorallnda, books, and
files as the Senate may propound, and to keep the said ----------
(name of person)
-------------------- in custody to await the further action of the
Senate.
(91)


































































































































































































































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