[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 16. Calling Witnesses; Subpenas]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2403-2409]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 16. Calling Witnesses; Subpenas

    This section discusses the calling of witnesses generally, and, 
specifically, subpenas ad testificandum to compel testimony, and 
subpenas duces tecum to compel production of papers, before the House 
or Senate or their committees or subcommittees.(2) It does 
not encompass all material relating to calling witnesses; subjects not 
discussed here include court subpenas for House papers,(3) 
investigations leading to impeachment,(4) inquiries into 
conduct of Members,(5) or qualifications or 
disqualifications of Members or Members-elect.(6)
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 2. See Sec. 4, supra, for a discussion of subpenas issued to the 
        executive branch, and Sec. 11, supra, for discussion of fourth 
        amendment considerations. See also 1 Hinds' Precedents Sec. 25; 
        2 Hinds' Precedents Sec. Sec. 1313 and 1608; 3 Hinds' 
        Precedents Sec. Sec. 1668, 1671, 1673, 1695, 1696, 1699, 1700, 
        1714, 1732, 1733, 1738, 1739, 1750, 1753, 1763, 1766, 1800, 
        1801-1810, 1813-1820; 6 Cannon's Precedents Sec. Sec. 336, 338, 
        339, 341, 342, 344, 346-349, 351, 354, 376, for earlier 
        precedents. For related discussion, see Sec. 13.11, supra, 
        regarding a subpenaed witness right not to be photographed; 
        Sec. Sec. 15.1 and 13.6, supra, relating to disposition of 
        requests to subpena witnesses when derogatory information has 
        and has not been received, respectively; and Sec. Sec. 17.4 and 
        19.4, infra, relating to citation of persons who have not been 
        subpenaed. See also all precedents in Sec. 20, infra, as they 
        relate to refusals to appear, be sworn, testify, or produce 
        documents in response to subpenas.
 3. See Ch. 11, supra, discussing privilege.
 4. See Ch. 14, Impeachment Powers, supra.
 5. See Ch. 12, supra.
 6. See Ch. 7, Members, supra.
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    A subpena is not a necessary prerequisite to an indictment and 
conviction for contempt under the

[[Page 2404]]

statute, 2 USC Sec. 192, because its provisions apply to contumacy by 
every person who has been ``summoned as a witness by the authority of 
either House of Congress to give testimony or to produce papers. . . 
.'' (7)
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 7. Kamp v United States, 176 F2d 618 (D.C. Cir. 1948). See also, 
        Sinclair v United States, 279 U.S. 263, 291 (1929), which held 
        that the contempt statute extends to a case where a witness 
        voluntarily appears as a witness. Nonetheless, the House has 
        deleted from a contempt citation names of persons who had not 
        been subpenaed; see Sec. 17.4, infra.
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    A voluntary appearance before a committee does not immunize a 
person against service of a subpena. Consequently, a witness who was 
served with a subpena at a hearing at which he appeared voluntarily and 
refused to answer questions could legally be indicted and convicted of 
contempt.(8)
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 8. Dennis v United States, 171 F2d 986 (D.C. Cir. 1948).
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    A properly authorized subpena issued by a committee or subcommittee 
has the same force and effect as a subpena issued by the House or 
Senate itself.(9) Authority to issue subpenas is granted 
either by provisions of the rules of the House (10) or 
resolutions approved by the House or Senate.(11)
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 9. McGrain v Daugherty, 273 U.S. 135, 158 (1927). See discussion at 6 
        Cannon's Precedents Sec. 341; see also In re Motion to Quash 
        Subpenas and Vacate Service, 146 F Supp 792 (W.D. Pa. 1956).
10. In the 93d Congress, five committees, Appropriations, Budget, 
        Government Operations, Internal Security, and Standards of 
        Official Conduct, possessed authority under the rules to grant 
        subpenas; see Rule XI clauses 2(b), 8(d), and 11(b) 
        respectively, House Rules and Manual Sec. Sec. 679, 691, and 
        703 A (1973). In the 94th Congress, all committees functioning 
        under Rule X or XI were granted subpena authority by the 
        standing rules and only select committees derived subpena 
        authority from special resolutions.
11. Note: Recent changes in the procedure described herein, including 
        methods of authorization, will be discussed in supplements to 
        this edition as they appear.
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    Because failure to comply with procedures prescribed in the rules 
or authorizing resolution invalidates subpenas, a subpena signed by the 
chairman but not authorized by a subcommittee (12) and 
another authorized by the chairman after consultation with one other 
member but not the full subcommittee,(13) were held invalid.
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12. Shelton v United States, 327 F2d 601 (D.C. Cir. 1963).
13. Liveright v United States, 347 F2d 473 (D.C. Cir. 1965).
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    Parliamentarian's Note: The committee or subcommittee must actually 
meet with a quorum

[[Page 2405]]

present to authorize the issuance of a subpena, since under section 407 
of Jefferson's Manual a committee ``can only act when together, and not 
by separate consultation and consent.''
    Minor irregularities in the form of a subpena do not invalidate it 
when the meaning is clear to the person to whom it is directed. An 
objection to a variance between a subpena duces tecum which directed 
the witness to produce records of the United Professional Workers of 
America, and an indictment, which alleged refusal to produce records of 
the United Public Workers of America, of which the witness was 
president, was held to be frivolous, particularly because the witness 
called attention to the error.(14)
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14. Flaxer v United States, 235 F2d 821 (D.C. Cir. 1956), vacated and 
        remanded, 354 U.S. 929 (1957), aff'd., 258 F2d 413 (D.C. Cir. 
        1958), reversed on other grounds, 358 U.S. 147 (1958).
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    A subpena directing a member of the executive board of an 
association to produce organizational records was held not defective as 
being addressed to an individual member of the board rather than to the 
association.(15) And postponement of a hearing did not 
excuse a refusal to testify on a date subsequent to the one that 
appeared on the subpena, despite the fact that the subpena did not 
contain a clause directing the witness to remain until excused, when 
the witness was present in Washington on the later date to attend the 
hearing and did not raise the issue at the time.(16)
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15. United States v Fleischman, 339 U.S. 349 (1950), rein. denied, 339 
        U.S. 991 (1950).
16. United States v Groves, 18 F Supp 3 (W.D. Pa. 1937).
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    Unlike a minor irregularity in form, a finding of invalidity of 
part of a subpena voids the whole subpena. Following the general rule 
that, ``one should not be held in contempt under a subpena that is part 
good and part bad,'' (17) a court of appeals stated in one 
case that the court had a burden to see that the subpena was good in 
its entirety. Believing that a person facing punishment should not have 
to cull the good from the bad, the court dismissed the indictment for 
contempt, because the subpena exceeded the authority delegated to the 
committee.(18) Similarly, the contempt conviction of the 
Executive Director of the Port of New York Authority, who provided 
subpenaed materials relating to the actual activities and
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17. Bowman Dairy Company v United States, 341 U.S. 214 (1951).
18. United States v Patterson, 206 F2d 433 (D.C. Cir. 1953).
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[[Page 2406]]

operations of the authority but refused to supply materials relating to 
the reasons for these activities, was reversed on the ground that the 
latter category exceeded the authority granted by the House to the 
investigative unit, a subcommittee.(19) Nonetheless, in one 
case it was held that the mere possibility that the general terms of a 
subpena could be construed to include materials protected by the first 
amendment could not justify a blanket refusal to produce anything, in 
the absence of an objection that the subpena was too 
broad.(20) And a witness' conviction for obstruction of 
justice for mutilating or concealing records subpenaed was upheld on 
appeal notwithstanding the fact that the subpena had not been properly 
authorized. A valid subpena was not considered vital, since the 
defendant knew the documents were desired by a congressional 
committee.(1)
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19. Tobin v United States, 306 F2d 279 (1962), cert. denied, 371 U.S. 
        902 (1962).
20. Shelton v United States, 404 F2d 1292 (D. C. Cir. 1968), cert. 
        denied, 393 U.S. 1024 (1969).
 1. United States v Presser, 292 F2d 171 (6th Cir. 1961), aff'd. 371 
        U.S. 71 (1961).
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    To assure the attendance of a witness who refused to answer 
questions before a committee, the House or Senate may order the Speaker 
or President of the Senate, respectively, to issue a warrant ordering 
the Sergeant at Arms to arrest the witness and bring him before the bar 
of the parent body, if there is a reasonable belief that important 
evidence may otherwise be lost.(2)
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 2. Barry v United States ex rel. Cunningham, 279 U.S. 597, 619 (1929). 
        This case, based on an investigation of a Senator-elect, is 
        discussed at 6 Cannon's Precedents Sec. Sec. 346-349.
            The fact that an alien who had been subpenaed by a House 
        committee was arrested by Immigration and Naturalization 
        Service officers and taken before the committee in their 
        custody did not relieve him of his obligation to testify. 
        Although the issue of legality or illegality of the arrest 
        could be raised in a judicial proceeding, it was irrelevant to 
        the committee proceedings. Eisler v United States, 170 F2d 273 
        (D.C. Cir. 1948), cert. dismissed, 338 U.S. 883 (1949).
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    Where a committee of Congress has subpenaed a witness to appear at 
a hearing without defining questions to be asked, the judicial branch 
should not enjoin in advance the holding of the hearing or suspend the 
subpena; the rights of a witness regarding any question actually asked 
at the hearing are subject to determination in appropriate proceedings 
thereafter.(3)
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 3. Mins et al. v McCarthy, 209 F2d 307 (D.C. Cir. 1953).
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[[Page 2407]]

            Two recent cases discussing injunctions against compliance 
        with congressional requests or subpenas will be treated in more 
        detail in supplements to this edition. In an action by Ashland 
        Oil, Inc., to enjoin the Federal Trade Commission from 
        furnishing certain trade secrets to a congressional 
        subcommittee, the Court of Appeals for the District of Columbia 
        held that the Federal Trade Commission was not precluded by 
        statute from transmitting trade secrets to Congress pursuant 
        either to subpena or formal request. Ashland Oil, Inc. v 
        Federal Trade Commission, 548 F2d 977 (D.C. Cir. 1976). In the 
        other case, the Justice Department sought to enjoin American 
        Telephone & Telegraph Co. from complying with a subpena issued 
        by the Chairman of the House Committee on Interstate and 
        Foreign Commerce. The information sought pursuant to the 
        subpena related to electronic surveillance, and the executive 
        branch contended that disclosure of the information created a 
        risk to national security. The District Court for the District 
        of Columbia having issued an injunction against compliance with 
        the congressional subpena, the U.S. Court of Appeals for the 
        District of Columbia remanded the case without decision on the 
        merits and called for further negotiations between the parties. 
        United States v American Telephone & Telegraph Co., 551 F2d 384 
        (D.C. Cir. 1976). The Court further directed the District Court 
        to modify the injunction with respect to information regarding 
        domestic surveillance, disclosure of which had not been found 
        to create an undue risk to national security.
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Habeas Corpus

Sec. 16.1 A subcommittee may petition a court to issue a writ of habeas 
    corpus to compel attendance of an incarcerated person at a 
    committee hearing.

    On Sept. 10, 1973,(4) the fact that the Special 
Subcommittee on Intelligence of the Committee on Armed Services had 
petitioned a U.S. district court to issue a writ of habeas corpus ad 
testificandum to compel the attendance of a witness, G. Gordon Liddy, 
before a hearing of the subcommittee, was revealed to the House in 
House Report No. 93-453.
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 4. 119 Cong. Rec. 28951, 93d Cong. 1st Sess.
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                                 Background

        At the time of the subcommittee hearings, Mr. Liddy was in 
    confinement in the District of Columbia Jail as the result of his 
    conviction on the Watergate breakin. Accordingly, the subcommittee 
    petitioned Chief Judge John J. Sirica of the United States District 
    Court for the District of Columbia for a Writ of Habeas Corpus Ad 
    Testificandum as the only means of obtaining Mr. Liddy's presence 
    before the subcommittee. In his discretion Judge Sirica signed that 
    petition and an order was delivered to the United States Marshal 
    for Mr. Liddy's appearance before the subcommittee on July

[[Page 2408]]

    20, 1973. [See Appendix 1, pp. 16-17.] Mr. Liddy appeared as 
    ordered.

Subpena as Prerequisite for Contempt

Sec. 16.2 The House and not the Chair determines whether persons who 
    have not been subpenaed may be cited for refusal to produce 
    organizational books, records, and papers.

    On Mar. 28, 1946,(5) Speaker Sam Rayburn, of Texas, 
responded to a point of order regarding authority to entertain a 
resolution citing for contempt persons who had not been subpenaed.
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 5. 92 Cong. Rec. 2743-45, 79th Cong. 2d Sess.
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        Mr. [John S.] Wood [of Georgia]: Mr. Speaker, by direction of 
    the Committee on Un-American Activities, I present a privileged 
    report and ask that it be read. . . .

                    Committee on Un-American Activities

        The Speaker: The Clerk will read the report of the Committee on 
    Un-American Activities.
        The Clerk read as follows:

               Proceeding Against Dr. Edward K. Barsky and Others

            Mr. Wood, from the Committee on Un-American Activities, 
        submitted the following report:
            The Committee on Un-American Activities as created and 
        authorized by the House of Representatives by House Resolution 
        5 of the Seventy-ninth Congress, caused to be issued a subpena 
        to Dr. Edward K. Barsky, chairman of the Joint Anti-Fascist 
        Refugee Committee, an unincorporated organization with offices 
        at 192 Lexington Avenue, New York, N.Y. The said subpena 
        required the said person to produce books, papers, and records 
        of the organization for the inspection of your committee; the 
        subpena is set forth as follows: . . .

    In his appearance before the committee, Dr. Barsky stated that he 
was unable to produce the subpenaed materials because that authority 
had not been granted by the members of the executive board.
    At the request of a committee member, he supplied a list of names 
and addresses of board members. This list appeared in the report and 
resolution. Thereafter the following resolution was considered:

        Mr. Wood: Mr. Speaker, I offer a privileged resolution (H. Res. 
    573) and ask for its immediate consideration.
        The Clerk read the resolution, as follows:

            Resolved, That the Speaker of the House of Representatives 
        certify the report of the House Committee on Un-American 
        Activities as to the willful and deliberate refusal of the 
        following persons to produce before the said committee for its 
        inspection the books, papers, and records of an unincorporated 
        organization known as the Joint Anti-Fascist Refugee Committee, 
        with offices at 192 Lexington Avenue, New York, N. Y., together 
        with all the facts relating

[[Page 2409]]

        thereto, under seal of the House of Representatives, to the 
        United States attorney for the District of Columbia to the end 
        that the said persons named below may be proceeded against in 
        the manner and form provided by law:
            Dr. Edward K. Barsky, 54 East Sixty-first Street, New York 
        City.
            Dr. Jacob Auslander, 288 West Eighty-sixth Street, New York 
        City.
            Prof. Lyman R. Bradley, New York University, New York City.
            Mrs. Marjorie Chodorov, 815 Park Avenue, New York City. . . 
        .

        Mr. [Vito] Marcantonio [of New York]: Mr. Speaker, a point of 
    order.
        The Spearer: The gentleman will state it.
        Mr. Marcantonio: Mr. Speaker, I make a point of order against 
    the resolution on the ground that it seeks to have cited by this 
    House individuals who were never subpenaed, and never given an 
    opportunity to appear and state whether or not they would or could 
    comply with a subpena. Under those circumstances, I maintain that 
    insofar as those individuals are concerned this matter is not 
    properly before the House, in that neither the resolution nor the 
    report from the committee sets forth that these individuals were 
    subpenaed, with the exception of Dr. Barsky. None of the others 
    were subpenaed; none of the others came before the committee and 
    were accorded even an opportunity to say ``yes'' or ``no'' as to 
    whether or not they had authority or control over the records and 
    books and whether they could or would comply with the committee's 
    subpena. For that reason, as far as they are concerned, this 
    resolution is not properly before this House.
        The Speaker: The Chair is ready to rule.
        The report and the resolution are both before the House for its 
    determination, and not the determination of the Chair. The Chair 
    overrules the point of order.(6)
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 6. See Sec. 17.4, infra, discussing adoption of an amendment deleting 
        names of all persons who had not been subpenaed.
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