[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 15. Effect of Derogatory Information]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2390-2403]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 15. Effect of Derogatory Information

    In 1955, the House amended its rules to prescribe the procedures to 
be followed upon a determination that evidence at a hearing ``may tend 
to defame, degrade, or incriminate a person.'' The provisions of the 
rule, and their application, are discussed in detail in succeeding 
sections.(11)
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11. See Sec. 15.1, infra, for a discussion of the rule and its 
        adoption. See Sec. Sec. 15.215.6, infra, for application of 
        particular provisions.
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    The three requirements of the rule are cumulative and 
mandatory.(12) Thus, a committee, upon determining that 
evidence adduced at an investigative hearing may tend to defame, 
degrade, or incriminate a person, must (1) receive the evidence in 
executive session; (2) afford the person an opportunity to appear 
voluntarily as a witness; and (3) receive and dispose of requests from 
such a person to subpena additional witnesses.
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12. See the ruling of the Chair set forth in Sec. 15.4, infra.
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    If a committee affords a witness the opportunity to appear 
voluntarily to testify in executive session and that opportunity is 
ignored by the witness, the committee cannot thereafter proceed as if 
it had fully complied with the rule but must issue a subpena and comply 
with all other requirements of the rule. However, if the witness 
thereafter appears in response to a subpena and, when called, asks for 
an executive session, the committee must determine, as provided by the 
rule, whether the testimony will tend to defame, degrade, or 
incriminate. If the committee determines that the evidence will not so 
tend, it may then proceed in open session.(13)
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13. See the proceedings discussed in Sec. 15.6, infra. See also 112 
        Cong. Rec. 27506, 89th Cong. 2d Sess., Oct. 18, 1966.
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    Although the rule was intended to apply to third parties rather 
than witnesses,(14) it has been the subject of points of 
order relating to rights of witnesses.(15)
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14. See Sec. 15.1, infra.
15. See Sec. Sec. 15.2-15.6, infra.          ----------------------------------------------------------------------------

In General

Sec. 15.1 As part of the Code of Fair Procedures, the House amended the 
    rules to provide that, ``If the committee determines that evidence 
    or testimony at an investigative hearing may tend to defame, 
    degrade, or incriminate a person, it shall (1) receive

[[Page 2391]]

    such evidence or testimony in executive session; (2) afford such 
    person an opportunity voluntarily to appear as a witness; and (3) 
    receive and dispose of requests from such person to subpena 
    additional witnesses.''

    On Mar. 23, 1955,(16) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, which 
included a provision providing safeguards to be followed in the 
reception of derogatory testimony.(17)
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16. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
17. See House Rules and Manual Sec. 735(m) (1973).
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    Commenting on this provision, the Chairman of the Committee on 
Rules, Howard W. Smith, of Virginia, stated that, ``. . . when a person 
is named in a committee hearing and his good reputation besmirched, he 
shall have a prompt opportunity to appear and refute the 
charges.(18) The effects of this provision were further 
discussed: (19)
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18. 101 Cong. Rec. 3569, 84th Cong. 1st Sess.
19. 101 Cong. Rec. 3572, 3573, 84th Cong. 1st Sess.
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        Mr. [Clarence J.] Brown of Ohio: . . . Then if the committee 
    determines that evidence or testimony at an investigative hearing 
    may tend to defame, degrade, or incriminate any person, this 
    resolution provides that it shall receive such testimony in 
    executive session; that is, if it is possible to do so, they may go 
    immediately into executive session. They shall afford such person 
    an opportunity voluntarily to appear as a witness to refute such 
    statements or testimony against him; and it shall receive and 
    dispose of requests from such a person to subpena additional 
    witnesses. Those rights are given to the witness. . . .
        Mr. [James C.] Murray of Illinois: We had considerable 
    discussion when another bill was up today concerning the meaning of 
    the words ``shall'' and ``may.'' I notice in line 16 on page 2, it 
    says with reference to testimony that may tend to defame, degrade, 
    or incriminate a person that the committee shall do so and so. Is 
    that mandatory or is it permissive?
        Mr. Brown of Ohio: Where it finds that it may tend to defame, 
    degrade, or incriminate a person, it shall do so and so; it shall 
    receive such evidence and testimony until it satisfies itself 
    whether it is true.
        Mr. Murray of Illinois: Is that mandatory?
        Mr. Brown of Ohio: Yes, that is mandatory, in my opinion. They 
    shall afford such person who had been defamed the right voluntarily 
    to come before the committee and refute it, which is a fair thing 
    and a procedure which practically all the committees of the House 
    now follow.
        Mr. [Porter] Hardy [Jr., of Virginia]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Brown of Ohio: I yield to the gentleman from Virginia.

[[Page 2392]]

        Mr. Hardy: On that particular point, the discussion centers 
    around whether or not the testimony would tend to degrade or 
    intimidate the witness. That is what the section says.
        Mr. Brown of Ohio: The gentleman reads into it something that 
    is not in there. It says ``degrade any person.''
        Mr. Hardy: That is exactly my point. It would mean, then, that 
    if a committee held an executive session and determined that they 
    were going to receive testimony which would indicate that an 
    individual not the witness had misappropriated Government property, 
    for instance, under this language it could not hold that testimony 
    in open session.
        Mr. Brown of Ohio: That is right. If I charge you with being a 
    thief, the committee goes into executive session to explore as to 
    whether or not I have any justification for that charge and you 
    have the right to answer it. Then, if they determine that there is 
    some ground for my charge against you, they can have all the open 
    sessions they want to have.
        Mr. Hardy: Is there anything in here that shows that you can 
    open that hearing up?
        Mr. Brown of Ohio: Certainly, because it provides only the two 
    things they shall do in such circumstances. . . .
        Mr. [Edwin E.] Willis [of Louisiana]: That provision under 
    discussion refers to a person not on the stand?
        Mr. Brown of Ohio: That is right.
        Mr. Willis: It refers to defaming third parties, not the man on 
    the stand?
        Mr. Brown of Ohio: That is right.
        Mr. Hardy: I understand that, but suppose you have a situation 
    that clearly shows that there has been abuse?
        Mr. Brown of Ohio: What does it say here? They consider that in 
    executive session, then they come back into open session after they 
    have got the information and, if they decide there is some 
    substance to your charge, or my charge against you, then they can 
    go ahead and have all the open hearings they want.
        Mr. Hardy: They can have all the open hearings they want, then.
        Mr. Willis: I think this is important. The controlling part of 
    that particular section is that ``If the committee determines,'' 
    then such and such happens.
        Mr. Brown of Ohio: That is right.
        Mr. Willis: But the determination must be made first.
        Mr. Brown of Ohio: It rests entirely with the committee.
        Mr. Hardy: The gentleman is absolutely correct. It is only 
    where the person is brought up for the first time and when the 
    committee determines that the matter should be gone into; then you 
    can have all the public hearings you want.
        Mr. Brown of Ohio: If they think the man has been defamed. If I 
    say you are a Communist and the evidence shows you are not, then I 
    have not told the truth. The committee determines whether or not 
    you have been defamed.
        Mr. Hardy: That is exactly right. Then you can have all the 
    public hearings you want.
        Mr. Smith of Virginia: Mr. Speaker, I yield 5 minutes to the 
    gentleman from Georgia [Mr. Forrester].

[[Page 2393]]

        Mr. [Elijah L.] Forrester [of Georgia]: . . . With regard to 
    the particular portion which was inquired about by the gentleman 
    from Virginia [Mr. Hardy], the answer given by the gentleman from 
    Ohio [Mr. Brown] is absolutely correct. All on earth this provision 
    does is that if a man's name is brought up before a committee for 
    the first time, you go into executive session and you somewhat 
    simulate the action of a grand jury. That is a fair provision.
        Mr. [Edward T.] Miller of Maryland: Mr. Speaker, will the 
    gentleman yield?
        Mr. Forrester: I yield.
        Mr. Miller of Maryland: I share the view of the gentleman from 
    Virginia that that may be the intention, but certainly the language 
    here does not indicate how it would be possible to bring out 
    evidence that you knew was going to degrade somebody except in 
    executive session. I do not see any language here that permits 
    that.
        Mr. Forrester: No matter where it is brought out, if it is in 
    executive session, then, of course, you can deal with it, but if it 
    is in public session, then you simply suspend and go into executive 
    session and determine whether or not there is a reason to expose 
    that man's name publicly. That is a right which the Congress should 
    be the first to concede to any person. . . .

    This clause aroused some criticism, as shown in the remarks 
below:(20)
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20. 101 Cong. Rec. 3573, 3583, 84th Cong. 1st Sess.
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        Mr. Hardy: I am in complete accord with the objectives of the 
    committee, and I congratulate the committee on attempting to deal 
    with a very difficult problem. However, I think that subsection 
    (m), as now written, will hamper every investigation that is ever 
    undertaken.
        Mr. Forrester: I do not think so. * * *
        Mr. [Kenneth B.] Keating [of New York]: * * * I am also puzzled 
    and troubled a little about subparagraph (m) and the way it is 
    intended to work. In the first place, it specifies that ``if the 
    committee determines'' that certain evidence or testimony is 
    defamatory, degrading, or incriminating, it must then hear the same 
    in executive session--but in order for the committee to make such a 
    determination it would appear that some consideration of the 
    evidence or testimony would already have to have taken place. So I 
    wonder if the requirement is not self-defeating, in that the harm 
    would be done before the committee would ever be in a position to 
    provide the intended protection.
        In passing, I should also like to raise a grave question about 
    this matter of executive sessions. Undoubtedly, it is a good and 
    desirable thing to create a right, at least in limited 
    circumstances, for a person who is likely to be injured by 
    testimony to have the testimony taken at a secret hearing. I favor 
    that, if some practical way to accord it without tying the 
    committee's hands can be worked out.
        But I am also persuaded that there is, as a practical 
    possibility at least, a considerable danger of abuse in the other 
    direction, namely, a danger that the secret hearing may also be 
    used as a truly terrible reincarnation of the star chamber. If a 
    hostile and unwill

[[Page 2394]]

    ing witness is forced to submit to lengthy examination, under oath 
    and on record, in a secret session, he can be put at a terrible 
    disadvantage when the committee later raises the curtain and 
    conducts the interrogation again publicly. He is bound to 
    everything he said, at the peril of imminent prosecution for 
    perjury, and his interrogators are able to pick and choose from 
    only the most damaging concessions and exactions. In some of the 
    drafts last year this matter was handled by creating, in the 
    witness, a right to insist upon being heard publicly if he feared 
    the secret session. There are some possible difficulties with this, 
    although the hostile witness who invokes such a right would 
    probably be of little legitimate value to the committee in any 
    case. . .(21)
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21. See Sec. 13.2, supra, for other criticism of this provision.
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Receiving Testimony in Executive Session

Sec. 15.2 A point of order was raised against a committee report citing 
    a witness in contempt, on the ground that the committee had 
    violated a House rule by not receiving certain testimony in 
    executive session.

    On Oct. 18, 1966, Mr. Sidney R. Yates, of Illinois, raised points 
of order against House Report Nos. 2302 (22) 2305 
(23) and 2306 (24) relating to refusals of three 
named individuals to testify before the Committee on Un-American 
Activities, on the ground that the committee violated Rule XI clause 
27(m), (1) by not receiving in executive session evidence 
and testimony which would allegedly defame, degrade, or incriminate 
these individuals.
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22. See Sec. 15.3, infra, for this point of order.
23. See Sec. 15.6, infra, for this point of order.
24. See 112 Cong. Rec. 27505, 89th Cong. 2d Sess., for this point of 
        order.
 1. See House Rules and Manual Sec. 735(m) (1973).
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    Speaker John W. McCormack, of Massachusetts, overruled each point 
of order, stating as his reasons those set forth in sections 
following.(2)
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 2. See Sec. Sec. 15.3, 15.6, infra.
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Prerequisite for Committee Determination

Sec. 15.3 Where a person subpenaed as a witness responded to his name 
    and then left the hearing room without making any statement other 
    than that he refused to testify, the committee could not be said to 
    violate the House rule relating to derogatory informa

[[Page 2395]]

    tion since the proceedings had never reached the point where the 
    testimony could be said to tend to degrade, defame, or incriminate.

    On Oct. 18, 1966,(3) Speaker John W. McCormack, of 
Massachusetts, in response to a point of order by Mr. Sidney R. Yates, 
of Illinois, against privileged House Report No. 2302, citing Milton 
Mitchell Cohen, of Chicago, Ill., in contempt for refusal to respond to 
questions at a hearing, ruled that the Committee on Un-American 
Activities had not violated Rule XI clause 27(m),(4) because 
the proceedings had not reached the stage at which the committee 
determines whether to hear evidence or testimony in executive session.
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 3. See the proceedings at 112 Cong. Rec. 27439-48, 89th Cong. 2d Sess.
 4. See House Rules and Manual Sec. 735(m) (1973).
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                 Proceedings Against Milton Mitchell Cohen

        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, I rise on a 
    question of the privilege of the House, and by direction of the 
    Committee on Un -American Activities I submit a privileged report--
    House Report No. 2302. . . .
        Mr. Yates: Mr. Speaker, I make a point of order against the 
    resolution offered by the Committee on Un-American Activities. The 
    committee appears here today claiming the privilege of the House. 
    It asserts that this House has been injured, that its dignity and 
    its integrity have been threatened, even impaired, by reason of the 
    refusal of the respondents to give testimony to the committee at a 
    public hearing duly convened. It now asks this House in this 
    resolution to hold the respondent in contempt so that he may be 
    punished by the criminal processes of the law for his refusal to 
    testify.
        Mr. Speaker, there is no doubt that the respondent did refuse 
    to give testimony. The question I raise for the consideration of 
    the Chair is whether a witness may be required to give such 
    testimony when the committee itself has violated the [rights] of 
    the respondent by refusing to follow the Rules of the House which 
    were specifically established to protect the rights of the 
    respondents for this purpose. . . .
        This committee, the Committee on Un-American Activities, has 
    failed and refused to follow the Code of Fair Procedure by denying 
    the request of the respondent that his testimony be taken in 
    executive session. . . .(5)
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 5. See Sec. 13.1, supra, for discussion of adoption of this code.
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        May a committee of this House deny the protection of the rules 
    which were approved by this House for the purpose of protecting 
    witnesses who request that protection? There are no precedents of 
    the House on this point, but the Supreme Court (6) faced 
    with a

[[Page 2396]]

    similar question decided that a committee could not compel a 
    witness to testify under such circumstances, and the Court, the 
    Supreme Court of the United States, vacated a criminal contempt 
    conviction that had been entered against a defendant whose case had 
    come up from the Committee on Un-American Activities.
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 6. See Yellin v United States, 374 U.S. 109 (1963), which reversed a 
        conviction because the Committee on Un-American Activities 
        failed to comply with its own rule, not a House rule, regarding 
        executive sessions rather than the House rule discussed here. 
        Yellin is discussed at Sec. 1 5.6, infra.
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        Mr. Speaker, what does rule 26(m) provide? I read it, Mr. 
    Speaker. It says this:
        If the committee determines that evidence or testimony at an 
    investigative hearing may tend to defame, degrade, or incriminate 
    any person, it shall do the following:

        First. It shall receive such evidence or testimony in executive 
    session;
        Second. It shall afford such person an opportunity voluntarily 
    to appear as a witness; and--not ``or'' but ``and,'' Mr. Speaker.
        Third. Receive and dispose of requests from such persons to 
    subpena additional witnesses.
        It is to be noted, Mr. Speaker, that the three requirements of 
    the committee are not in the alternative. They are cumulative.
        In his letter of May 25, the chairman of this committee wrote a 
    letter to the respondent saying that the committee was acting 
    pursuant to [Rule XI clause 27(m)] in offering to take the 
    testimony in executive session. Thus, the rule had been activated 
    and a decision had been made by the committee that the testimony 
    was of a type that would tend to defame, degrade, or incriminate.
        Mr. Speaker, in offering the witness this opportunity to appear 
    voluntarily and give testimony in executive session, the committee 
    was complying with section 2 of the rule.
        But, Mr. Speaker, when the witnesses did not appear 
    voluntarily, in spite of the fact that the conditions for requiring 
    testimony to be taken in executive session were still present; 
    namely, that the testimony would tend to degrade, defame, or 
    incriminate, the committee determined to receive the testimony in 
    public session. . . .
        The Speaker: The Chair will hear the gentleman from Georgia 
    [Mr. Weltner].
        Mr. [Charles L.] Weltner: . . .
        [T]he report before the Speaker and before the Members shows 
    that on May 18, Mr. Cohen, without relying upon any constitutional 
    protection, announced through his attorney that he was departing 
    from the witness room without submitting himself to any questions 
    by the committee, after stating only his name and address.
        The rules of the House have been religiously followed in this 
    instance, in each case, in each of the three burdens upon the House 
    committee pursuant to rule 26(m). . . .
        There was a request by his attorney that he be called and 
    examined in executive session. The record of the hearing will show, 
    Mr. Speaker, that subsequent to the making of that request, this 
    committee recessed the public hearings; that it undertook to 
    consider his request in executive session; that the factors making 
    up the substance of his request were considered; and the request 
    was by unanimous vote of that committee denied. . . .

[[Page 2397]]

        The Speaker: The Chair is ruling only in these cases on this 
    particular case concerning Milton Mitchell Cohen. The gentleman 
    from Illinois [Mr. Yates] has raised a point of order against the 
    privileged report filed by the gentleman from Georgia [Mr. Weltner] 
    citing a witness before a subcommittee of the Committee on Un-
    American Activities of the House for contempt. The point of order 
    is based on the ground that the subcommittee while holding hearings 
    in Chicago failed or refused to follow the rules of the House, 
    specifically rule XI, clause 26(m) and, at the demand of the 
    witnesses' attorney, take the testimony in executive session rather 
    than in an open hearing. . . .
        The Chair agrees with the gentleman from Illinois that the 
    three subclauses are not in the alternative. Each subclause stands 
    by itself. The Chair will point out, however, that the subsection 
    places the determination with the committee, not with the witness. 
    . . .
        Now the Chair will cite clause 26(a) of rule XI, which states 
    that the rules of the House are the rules of its committees so far 
    as applicable. This provision also applies to the subcommittees of 
    any such committee. Consequently, the Chair must examine the facts 
    to see if the subcommittee did in fact comply with clause 26(m) of 
    rule XI.
        The Chair will call attention to the fact that it is pointed 
    out on page 8 of the report that the witness was invited to appear 
    and testify in executive session. The invitation was ignored.
        It will be noted, on pages 11 and 12 of the committee report, 
    that the attorney for witness Cohen instructed his client not to 
    give any testimony pending determination of a legal action in the 
    U.S. District Court for the Northern District of Illinois.
        The witness then left the hearing room, notwithstanding the 
    admonition of the chairman of the subcommittee.
        The Chair fails to see how clause 26 (m) of rule XI becomes 
    involved since the witness left the hearing room after his attorney 
    had instructed him not to answer any questions pending 
    determination of the legal proceedings.
        The Chair, therefore, overrules the point of order.

Committee Determinations

Sec. 15.4 The determination that evidence may tend to defame, degrade, 
    or incriminate a person, a prerequisite to certain procedural steps 
    under House rules lies with the committee and not with the witness.

    On Oct. 18, 1966, Speaker John W. McCormack, of Massachusetts, in 
the course of ruling on the point of order discussed above, stated 
(7) that the committee, not

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 7. 112 Cong. Rec. 27448, 89th Cong. 2d Sess. See Sec. 15.3, supra, for 
        the point of order. See also Sec. 15.6 and 112 Cong. Rec. 
        27505, 27506, 89th Cong. 2d Sess., Oct. 18, 1966, for the same 
        ruling on this issue to points of order raised by Mr. Sidney R. 
        Yates (Ill.), against H. REPT. Nos. 2305 and 2306 relating to 
        refusals of Yolanda Hall and Dr. Jeremiah Stamler, 
        respectively, to testify before the Committee on Un-American 
        Activities.
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[[Page 2398]]

the witness, determines whether evidence may tend to defame, degrade, 
or incriminate a person under Rule XI clause 27(m).(8)
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 8. See House Rules and Manual Sec. 735(m) (1973).
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        The Speaker: . . . The point of order is based on the ground 
    that the subcommittee while holding hearings in Chicago failed or 
    refused to follow the rules of the House, specifically rule XI, 
    clause 26(m) and, at the demand of the witnesses' attorney, take 
    the testimony in executive session rather than in an open hearing. 
    . . .
        The Chair has . . . refreshed his recollection of clause 26(m), 
    rule XI, which reads as follows:

            If the committee determines that evidence or testimony at 
        an investigative hearing may tend to defame, degrade, or 
        incriminate any person, it shall--
            (1) receive such evidence or testimony in executive 
        session;
            (2) afford such person an opportunity voluntarily to appear 
        as a witness; and
            (3) receive and dispose of requests from such person to 
        subpena additional witnesses.

        The Chair agrees with the gentleman from Illinois that the 
    three subclauses are not in the alternative. Each subclause stands 
    by itself. The Chair will point out, however, that the subsection 
    places the determination with the committee, not with the witness.

Sec. 15.5 With respect to evidence or testimony at an investigative 
    hearing which may tend to defame, degrade, or incriminate a person, 
    the committee, under the rules of the House, determines whether to 
    hold an executive session or publicize material which has been 
    received in executive session.

    On Apr. 5, 1967,(9) during consideration of House 
Resolution 221, providing additional expense funds for the Committee on 
Un-American Activities, Speaker John W. McCormack, of Massachusetts, 
responded to parliamentary inquiries relating to the discretion of a 
committee under Rule XI clause 27(m).(10)
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 9. 113 Cong. Rec. 8420, 8421, 90th Cong. 1st Sess.
10. See House Rules and Manual Sec. 735(m) (1973).
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        Mr. [Sidney R.] Yates [of Illinois]: Mr. Speaker [rule XI, 
    27(m)] of the Rules of the House of Representatives states as 
    follows:

            If the committee determines that evidence or testimony at 
        an investigative hearing may tend to defame, degrade, or 
        incriminate any person, it shall--
             (1) receive such evidence or testimony in executive 
        session;

        Mr. Speaker, my question is this: If the committee determines 
    that the evidence it is about to receive may tend to defame, 
    degrade or incriminate a witness, is it not compulsory under the 
    Rules of the House for the committee

[[Page 2399]]

    to hold such hearings in executive session?
        The Speaker: The Chair will state that that is a matter which 
    would be in the control of the committee for committee action. . . 
    .
        Mr. Yates: I must say that I do not understand the ruling. Is 
    the Chair ruling that a committee can waive this rule? That it can 
    refuse to recognize this rule?
        The Speaker: The Chair would not want to pass upon a general 
    parliamentary inquiry, as distinguished from a particular one with 
    facts, but the Chair is of the opinion that if the committee voted 
    to make public the testimony taken in executive session, it is not 
    in violation of the rule, and certainly that would be a committee 
    matter.
        Mr. Yates: A further parliamentary inquiry, Mr. Speaker. What 
    the Chair is now stating is that if the committee votes at a 
    subsequent time to make public such a hearing, under the rules it 
    may do so. But that does not bear upon the question I addressed to 
    the Speaker, which was this: in the first instance, when testimony 
    is to be taken by the committee, and such testimony tends to 
    defame, degrade, or incriminate any person, must it be taken in 
    executive session? . . .
        The Speaker: The Chair will be very frank. The Chair recognizes 
    the power of the committee. If the committee goes into executive 
    session, the Chair is not going to make a ruling under those 
    circumstances as to whether a committee could make public testimony 
    taken in executive session.
        Mr. Yates: May I pursue one further parliamentary inquiry, Mr. 
    Speaker. The rule states:

            If the committee determines that evidence or testimony at 
        an investigative hearing may tend to defame, degrade, or 
        incriminate any person, it shall--
             (1) receive such evidence or testimony in executive 
        session.

        The question I addressed to the Chair was whether the committee 
    could waive that rule.
        The Speaker: The rule says:

            If the committee determines

        And there has to be a determination by the committee--

            that evidence or testimony at an investigative hearing may 
        tend to defame, degrade, or incriminate any person, it shall--

        First it has to make a determination. Without passing on this, 
    the Chair can look into the future and see where the committee 
    might make a determination, and then when it goes into executive 
    session and receives the evidence, it may find there the evidence 
    did not justify the original determination, or the evidence is of 
    such a nature that it justifies being made public.
        Mr. Yates: I thank the Chair. Then I take it from the Chair's 
    response to my inquiry that so long as the committee has made such 
    a finding and has not vacated it, the rule is applicable.
        The Speaker: The Chair is not even going to go that far--not on 
    this occasion. The Chair has been perfectly frank. Of course, 
    sometimes the word ``shall'' I know has been construed by the 
    courts sometimes as ``may''. The gentleman is familiar with that, I 
    am sure. The Chair is not doing that on this occasion. The Chair 
    would have to ascertain the facts in a particular case.

[[Page 2400]]

Consequence of Committee Determination

Sec. 15.6 A point of order that a committee violated a House rule 
    relating to the reception of derogatory evidence, made against a 
    committee report citing a witness for refusal to testify, could not 
    be sustained where the subpenaed witness requested through counsel 
    that evidence and testimony be taken in executive session, and the 
    committee recessed, considered, and denied the request, having 
    determined during the recess that these materials would not tend to 
    defame, degrade, or incriminate any person; such committee actions, 
    it was held, constituted compliance with the clause.

    On Oct. 18, 1966,(11) Speaker John W. McCormack, of 
Massachusetts, overruled a point of order raised by Mr. Sidney R. 
Yates, of Illinois, that the Committee on Un-American Activities 
violated Rule XI clause 27(m),(12) by not holding an 
executive session; the Speaker found that the committee had duly 
considered and rejected the request.
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11. See the proceedings at 112 Cong. Rec. 27486-95, 89th Cong. 2d Sess. 
        See also 112 Cong. Rec. 27500-06, 89th Cong. 2d Sess., Oct. 18, 
        1966, for the same ruling on a point of order raised against H. 
        Rept. No. 2306, regarding the refusal of Dr. Jeremiah Stamler 
        to testify before the Committee on Un-American Activities.
12. See House Rules and Manual Sec. 735(m) (1973).
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                      Proceedings Against Yolanda Hall

        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, I rise to a 
    question of the privilege of the House and by direction of the 
    Committee on Un-American Activities, I submit a privileged report-
    House Report No. 2305.
        The Clerk read as follows: . . . (13)
---------------------------------------------------------------------------
13. The report is omitted.
---------------------------------------------------------------------------

        Mr. Yates: Mr. Speaker, I make a point of order against the 
    resolution on the grounds that it is violative of [rule XI, 
    paragraph 27 (m)] of the rules of the House, requiring that 
    testimony which may tend to defame, degrade, or incriminate the 
    witness be taken in executive session. I do not intend to go into 
    the same delineation of my reasons that I gave in connection with 
    the preceding resolution.(14) But I suggest, with due 
    respect, that the Chair should consider the fact that in this case, 
    even though the Supreme Court of the United States decision is not 
    controlling, it is nevertheless persuasive, and I should like to 
    read to the Chair from the decision in the case of Yellin v. the 
    United States, 374 U.S.
---------------------------------------------------------------------------
14. See Sec. 15.3, supra, relating to a contempt citation against 
        Milton Mitchell Cohen, during which Mr. Sidney R. Yates (Ill.), 
        raised similar objections.
---------------------------------------------------------------------------

[[Page 2401]]

    109, page 114, where the Court recited the rule which was then 
    under consideration as follows: (1)
---------------------------------------------------------------------------
 1. The quoted rule is taken from the rules of the Committee on Un-
        American Activities, not the rules of the House.
---------------------------------------------------------------------------

            Executive hearings: If a majority of the committee or 
        subcommittee duly appointed as provided by the Rules of the 
        House of Representatives believes 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 the advisability of conducting such interrogation thereafter 
        in a public hearing.

        Mr. Speaker, I now read from the decision of the Court on this 
    particular rule, where the Court, discussing the rules that make up 
    the Code of Fair Procedure that were approved in the year 1955, 
    said as follows:

            All these rules work for the witness' benefit. They show 
        that the committee has in a number of instances intended to 
        assure the witness fair treatment, even the right to advice of 
        counsel or undue publicity, and even the right not to be 
        photographed by television cameras.
            Rule IX, in providing for an executive session when a 
        public hearing might unjustly injure a witness' reputation, has 
        the same protection import. And if it is the witness who is 
        being protected, the most logical person to have the right to 
        enforce those protections is the witness himself.

        I respectfully suggest, Mr. Speaker, that the respondent, who 
    was called as a witness, requested in the instant case that she be 
    afforded the opportunity to testify in an executive session, a 
    request that was denied by the committee. The respondent 
    subsequently walked out on the committee without testifying.
        I read from the court, to show that the respondent had no 
    alternative under such circumstances. On page 121 the court says 
    this:

            Petitioner has no traditional remedy, such as the writ of 
        habeas corpus . . . by which to redress the loss of his rights. 
        If the Committee ignores his request for an executive session, 
        it is highly improbable that petitioner could obtain an 
        injunction against the Committee that would protect him from 
        public exposure. . . . 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 
        thing, his testimony will cause the injury he seeks to avoid; 
        under pain of perjury, he cannot by artful dissimulation evade 
        revealing the information he wishes to remain confidential. For 
        another, he has no opportunity to recover in damages. Even the 
        Fifth Amendment is not sufficient protection, since petitioner 
        could say many things which would discredit him without 
        subjecting himself to the risk of criminal prosecution. The 
        only avenue open is that which petitioner actually took. He 
        refused to testify.

        This is the decision of the Court. I respectfully suggest to 
    the Speaker that it would sustain the dignity and integrity of the 
    House if the interpretation of the rule for which I contend were 
    sustained. . . .

        Mr. [Richard H.] Ichord [of Missouri]: . . . To assist the 
    Chair in rul

[[Page 2402]]

    ing on the point of order of the gentleman from Illinois I would 
    point out to the Chair that the facts are essentially the same as 
    in the Cohen case, and that the gentleman from Illinois has raised 
    a point of order again under [rule XI 27(m)] that the witness, 
    Yolanda Hall, should have been afforded an executive session.
        Mr. Speaker, in this case the question of executive session is 
    not at 
    issue. . . .
        I direct the Speaker's attention to page 14 of the committee 
    report, which sets out the hearings in full.
        I direct the Speaker's attention to line 16, which will make it 
    clear to the Speaker that the witness, Yolanda Hall, did not 
    request an executive session from the House Committee on Un-
    American Activities. . . .
        Mr. Yates: . . . I . . . refer the Chair to page 337 of the 
    hearings where there appears a statement by Mr. Sullivan as 
    follows:

            I ask this committee to take in executive session any 
        testimony by my clients, that is, Dr. Stamler and Mrs. Hall, 
        and any testimony by any other witnesses about Dr. Stamler and 
        Mrs. Hall. That is my request.

        So that the request was made, Mr. Speaker, for testimony to be 
    taken in executive session. . . .
        The Speaker: The Chair is prepared to rule.
        The gentleman from Illinois [Mr. Yates] has raised a point of 
    order against the privileged report filed by the gentleman from 
    Louisiana, citing a witness before a subcommittee of the Committee 
    on Un-American Activities for contempt. The point of order is based 
    on the ground that the subcommittee, while holding hearings in 
    Chicago, failed or refused to follow the rules of the House--
    specifically, [rule XI, clause 27 (m)]--and, at the demand of the 
    witnesses' attorney, take the testimony in executive session rather 
    than in an open hearing.
        The Chair will again read [clause 27 (m), rule XI], as follows:

            (m) If the committee determines that evidence or testimony 
        at an investigative hearing may tend to defame, degrade, or 
        incriminate any person, it shall--
            (1) Receive such evidence or testimony in executive 
        session;
            (2) Afford such person an opportunity voluntarily to appear 
        as a witness; and
            (3) Receive and dispose of requests from such person to 
        subpena additional witnesses.

        The Chair again agrees with the gentleman from Illinois that 
    the three subclauses are not in the alternative. Each subclause 
    stands by itself. The Chair will point out, however, that the 
    subsection places the determination with the committee, not with 
    the witness. . . .
        Now the Chair will cite [clause 27(a) of rule XI], which states 
    that the rules of the House are the rules of its committees so far 
    as applicable. This provision also applies to the subcommittees of 
    any such committee. Consequently, the Chair must examine the facts 
    to see if the subcommittee did in fact comply with [clause 27(m) of 
    rule XI].
        The Chair will call attention to the fact that it is pointed 
    out on page 8 of the report that the witness in this instance was 
    invited to appear and testify in executive session. The invitation 
    was ignored.

[[Page 2403]]

        It will be noted, on pages 11 through 14 of the committee 
    report, that the attorney for witness Hall made demand for an 
    executive session. You will note, on page 11 of the report, that 
    when the demand for an executive session was made, the subcommittee 
    took a recess. It is obvious from the subcommittee chairman's 
    statement following that recess, that the subcommittee had 
    considered and determined not to take the testimony in executive 
    session. The chairman so states, on page 12 of the Hall citation:

            Your motion, now made, that Mrs. Hall be now heard in 
        executive session I deny after consideration of the 
        subcommittee. We have complied with [rule 27(m)] and all other 
        applicable rules of the House and of this committee.

        It is patently clear to the Chair that the subcommittee did 
    comply with [clause 27 (m)], and made the determination necessary 
    thereunder. Accordingly, the Chair overrules the point of order.