[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 6. Limitations on Authority to Investigate - Pertinence of Inquiry]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2352-2354]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 6. Limitations on Authority to Investigate--Pertinence of Inquiry


    Limitations on the authority to investigate are expressed in the 
Constitution and statutes, and judicial interpretation thereof, as well 
as in congressional and committee rules as interpreted and applied by 
presiding officers and the courts.

    The authority of Congress to investigate has been interpreted to 
derive from article I, section 1, stating that, ``All legislative 
Powers herein granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and a House of 
Representatives.'' Consequently, the authority to investigate is 
necessarily limited by the authority to legislate.(19) 
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19. See, for example, Barenblatt v U.S., 360 U.S. 109, 111 (1959) in 
        which Mr. Justice Harlan stated, ``The scope of the power of 
        inquiry, in short, is as penetrating and far-reaching as the 
        potential power to enact and appropriate under the 
        Constitution.'' See also Lovell, G. B., Scope of the 
        Legislative Investigational Power and Redress for Its Abuse, 9 
        Hastings L. J. 276 (1957).

    A review of criminal contempt proceedings provides a comprehensive 
overview of limits of authority to investigate including legislative 
purpose,(20) pertinence of investigation thereto, procedural 
regularity of hearings,(1) and rights of 
witnesses.(2)
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20. See Sec. 1, supra, for a discussion of authority to investigate and 
        legislative purpose.
 1. See Sec. 8, infra.
 2. See Sec. Sec. 9 through 14, infra.

    The statute which makes failure to testify a crime, 2 USC Sec. 192, 
provides that the question must be ``pertinent to the subject under 
inquiry.'' Pertinence is a matter of law (3) and does not 
depend upon

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 3. Braden v United States, 365 U.S. 431 (1961); and Sinclair v United 
        States, 279 U.S. 263 (1929).
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[[Page 2353]]

the probative value of the evidence.(4) It means pertinent 
to the subject under inquiry, rather than pertinent to the person under 
interrogation,(5) and relates to the particular question 
asked, not to unasked possibilities.(6)

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 4. Sinclair v United States, 279 U.S. 263 (1929). See 6 Cannon's 
        Precedents Sec. Sec. 336-338, for a discussion of this case.
 5. Rumely v United States, 197 F2d 166, 177 ( D. C. Cir. 1953); aff'd. 
        345 U.S. 41 (1953).
 6. Barsky v United States, 167 F2d 241, 248 (D.C. Cir. 1948); cert. 
        denied 334 U.S. 843 (1948).
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    Because a legislative inquiry, unlike a judicial inquiry, must 
anticipate all possible cases which may arise rather than determine 
facts in a single case, the concept of pertinence in a congressional 
investigation is broader than that of relevance in the law of 
evidence.(7) The elements of pertinence are: (1) the 
material sought or answers requested must relate to a legislative 
purpose which Congress may constitutionally entertain, and (2) such 
material or answers must fall within the grant of authority actually 
made by Congress to the investigating committee. The question must be 
pertinent; if it is pertinent, an innocent true answer does not destroy 
such pertinence. Although the statute mentions pertinence only in 
relation to answers to questions, it applies equally to demands to 
produce papers.(8)
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 7. Townsend v United States, 95 F2d 352 (D.C. Cir. 1938); cert. denied 
        30.3 U.S. 664 (1938).
 8. United States v Orman, 207 F2d 148, 153, 154, 156 (3d Cir. 1953). 
        See also, Bowers v United States, 202 F2d 447 (D.C. Cir. 1953) 
        and Moreland, Allen B., Congressional Investigations and 
        Private Persons, 40 So. Cal. L. Rev. 189, 236-239 (1967) for 
        discussions of pertinence.
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    Because a witness at an investigative hearing exposes himself to 
criminal prosecution for contempt under 2 USO Sec. 192 by refusing to 
answer questions, he is entitled to knowledge of the subject to which 
the interrogation is deemed pertinent with the same degree of 
explicitness that the due process clause requires in the expression of 
any element of a criminal offense.(9) An indictment which 
fails to identify the subject under inquiry at the time the witness was 
interrogated is fatally defective because the subject is central to 
prosecution under the statute.(10)
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 9. Watkins v United States, 354 U.S. 178, 209, 210 (1957).
10. Russell v United States, 369 U.S. 749, 764 (1962).
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    Rule XI clause 28(h)(11) imposes a duty on the chairman 
at an in

[[Page 2354]]

vestigative hearing to announce the subject of the investigation in an 
opening statement. When a witness refuses to answer a question on the 
ground of pertinence, the committee must repeat the ``question under 
investigation'' and show specifically where the question is pertinent 
thereto.(12)
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11. House Rules and Manual Sec. 735(i) (1973). See Sec. 13.4, infra, 
        for a discussion of approval of this rule.
12. Deutch v United States, 367 U.S. 456 (1961); this case reversed a 
        contempt conviction arising from an investigation of communist 
        party activities ``in the Albany area.'' The witness had 
        refused to answer certain questions relating to his communist 
        activities in Ithaca and at Cornell University, but, the court 
        noted, such locations are 165 miles from Albany and thus were 
        outside the scope of the committee's Iegitimate inquiry.
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    To ascertain the subject under inquiry, the court in deciding the 
validity of a challenge to pertinence may look at (1) the authorizing 
resolution, (2) the remarks of the chairman and other members, (3) the 
nature of the proceedings, (4) the action of the committee by which a 
subcommittee investigation was authorized, and (5) the chairman's 
response to the witness, refusal to answer.(13) A court may 
also consider the historical usage of a particular procedure or 
inquiry:
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13. Watkins v United States, 354 U.S. 178, 212, 213 (1957).
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        Just as legislation is often given meaning by the gloss of 
    legislative reports, administrative interpretation, and long usage, 
    so the proper meaning of an authorization to a congressional 
    committee is not to be derived alone from its abstract terms 
    unrelated to the definite content furnished them by the course of 
    congressional actions.(14)
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14. Barenblatt v United States, 360 U.S. 109, 117 (1959). See also 
        Wilkinson v. United States, 365 U.S. 399, 410 (1961).
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