Deschler's Precedents, Volume 4, Chapters 15 - 17 - § 15. Effect of Derogatory Information

[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[§ 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:

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:

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⁾
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13. The report is omitted.
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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.
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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.
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[[Page 2401]]

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