[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 13. Rights of Witnesses Under House Rules]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2368-2385]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 13. Rights of Witnesses Under House Rules

    In addition to constitutional provisions, certain rules of the 
House grant rights to witnesses at investigative hearings, or establish 
procedures for such hear

[[Page 2369]]

ings.(12) A rule (13) permits witnesses to submit 
brief and pertinent sworn statements in writing for inclusion in the 
record in the discretion of the committee, which is the sole judge of 
the pertinency of testimony and evidence adduced at its hearing. Cases 
decided prior to adoption of this rule indicated that a committee's 
refusal to permit a witness to make a statement before he was 
sworn,(14) or read a prepared statement (15) or a 
detailed legal brief objecting to a committee's authority during a 
hearing,(16) did not excuse refusals to be sworn or answer 
questions.
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12. See Sec. Sec. 13.1 to 13.11, infra. See also, Heuble, Edward, 
        Congressional Resistance to Reform: The House Adopts a Code for 
        Investigating Committees, 1 Midwest J. of Poll. Sci. 313 (Nov. 
        1957).
13. Rule XI clause 28 (p), House Rules and Manual Sec. 735(p) (1973). 
        See Sec. 13.10, infra, for a discussion of adoption of this 
        rule.
14. Eisler v United States, 170 F2d 273 (D.C. Cir. 1948); cert. 
        dismissed, 338 U.S. 883 (1948).
15. Townsend v United States, 95 F2d 352, 360 (D.C. Cir. 1938), cert. 
        denied, 303 U.S. 664 (1938).
16. Barenblatt v United States, 240 F2d 875 (D.C. Cir. 1957); vacated 
        and remanded, 354 U.S. 930 (1957); aff'd., 252 F2d 129 (D.C. 
        Cir. 1958); aff'd., 360 U.S. 109 (1959).
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    Another rule (17) permits a witness to refuse to be 
exposed to media coverage during a hearing. Prior to adoption of this 
rule, it was held that hearings conducted before media were not 
rendered invalid by the absence of a House rule on the subject, nor by 
the absence of rulings of the Speaker in that Congress; it was further 
said that rulings by Speakers in earlier Congresses prohibiting media 
coverage were not applicable.(18) Courts also held that the 
presence of microphones and cameras did not constitute such a lack of 
proper decorum as to render the committee an incompetent tribunal and 
eliminate the ``competent tribunal'' element of the crime of 
perjury.(19)
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17. Rule XI clause 33(f)(2), House Rules and Manual Sec. 739b (1973). 
        See Sec. 13.11, infra, for a discussion of adoption of this 
        rule.
18. Hartman v United States, 290 F2d 460 (9th Cir. 1961); reversed on 
        other grounds, 370 U.S. 724 (1962).
            District courts reached conflicting holdings on the duty of 
        a witness to answer questions at a televised hearing. Compare 
        United States v Kleinman, 107 F Supp 407 (D.D.C. 1952), which 
        held that a witness was justified in refusing to testify before 
        the media, with United States v Hintz, 193 F Supp 325 (N.D. 
        Ill. 1952) which held that the witness was not excused for that 
        reason. Both of these decisions predated Rule XI clause 33(f) 
        (2).
19. United States v Moran, 194 F2d 623 (2d Cir. 1952), cert. denied, 
        343 U.S. 965 (1952).

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[[Page 2370]]

Adoption of Code of Fair Procedures, Generally

Sec. 13.1 The House adopted the Code of Fair Procedures, establishing 
    procedural rights for witnesses at investigative hearings.

    On Mar. 23, 1955,(1) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, granting 
certain procedural rights to witnesses at investigative hearings.
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 1. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
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             Amending the Rules of the House of Representatives

        Mr. [Howard W.] Smith of Virginia: Mr. Speaker, by direction of 
    the Committee on Rules, I call up House Resolution 151 and ask for 
    its immediate consideration.
        The Clerk read the resolution, as follows:

            Resolved, That rule XI 25 (a) of the Rules of the House of 
        Representatives is amended to read:
            ``25. (a) The Rules of the House are the rules of its 
        committees so far as possible, except that a motion to recess 
        from day to day is a motion of high privilege in committees. 
        Committees may adopt additional rules not inconsistent 
        therewith.''
            Sec. 2. Rule XI (25) is further amended by adding at the 
        end thereof:
            ``(h) Each committee may fix the number of its members to 
        constitute a quorum for taking testimony and receiving 
        evidence, which shall be not less than two.(2)
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 2. This provision is discussed at Sec. 13.3, infra.
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            ``(i) The chairman at an investigative hearing shall 
        announce in an opening statement the subject of the 
        investigation.(3)
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 3. This provision is discussed at Sec. 13.4, infra.
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            ``(j) A copy of the committee rules, if any, and paragraph 
        25 of Rule XI of the House of Representatives shall be made 
        available to the witness.(4)
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 4. This provision is discussed at Sec. 13.7, infra.
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            ``(k) Witnesses may be accompanied by their own counsel for 
        the purpose of advising them concerning their constitutional 
        rights.(5)
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 5. This provision is discussed at Sec. 14.1, infra.
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            ``(l) The chairman may punish breaches of order and 
        decorum, and of professional ethics on the part of counsel, by 
        censure and exclusion from the hearings; and the committee may 
        cite the offender to the House for contempt.(6)
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 6. This provision is discussed at Sec. 13.5, infra.
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            ``(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.(7)
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 7. This provision is discussed at Sec. 15.1, infra.
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            ``(n) Except as provided in paragraph (m), the chairman 
        shall receive and the committee shall dis

[[Page 2371]]

        pose of requests to subpena additional witnesses.
            ``(o) No evidence or testimony taken in executive session 
        may be released or used in public sessions without the consent 
        of the committee.(8)
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 8. This provision is discussed at Sec. 13.9, infra.
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            ``(p) In the discretion of the committee, witnesses may 
        submit brief and pertinent sworn statements in writing for 
        inclusion in the record. The committee is the sole judge of the 
        pertinency of testimony and evidence adduced at its 
        hearing.(9)
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 9. This provision is discussed at Sec. 13.10, infra.
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            ``(q) Upon payment of the cost thereof, a witness may 
        obtain a transcript copy of his testimony given at a public 
        session or, if given at an executive session, when authorized 
        by the committee.'' (10)
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10. This provision is discussed at Sec. 13.8, infra.
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        Mr. Smith of Virginia: Mr. Speaker, I yield 30 minutes to the 
    gentleman from Ohio [Mr. Brown].
        Mr. Speaker, at this time I offer a committee amendment.
        The Clerk read as follows:

            Committee amendment offered by Mr. Smith of Virginia: On 
        page 1, line 4, after the word ``as'', strike out the word 
        ``possible'' and insert in lieu thereof ``applicable.''

        The committee amendment was agreed to.

        Mr. Smith of Virginia: Mr. Speaker, I offer another committee 
    amendment.
        The Clerk read as follows:

            Committee amendment offered by Mr. Smith of Virginia: On 
        page 2, line 7, after the word ``witnesses'', insert ``at 
        investigative hearings.''

        Mr. Smith of Virginia: Mr. Speaker, I think I should say a word 
    in explanation of that amendment. The bill reads:

            Witnesses may be accompanied by their own counsel for the 
        purpose of advising them concerning their constitutional 
        rights.

        The real purpose of this bill has to do with investigative 
    committees and not legislative committees. This amendment simply 
    makes that clear, that it applies not to the legislative 
    committees.
        The Speaker: (11) The question is on the committee 
    amendment offered by the gentleman from Virginia [Mr. Smith].
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11. Sam Rayburn (Tex.).
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        The committee amendment was agreed to. . . .
        Mr. Smith of Virginia: Mr. Speaker, I move the previous 
    question on the resolution.
        The Speaker: Without objection, the previous question is 
    ordered
        Mr. [Kenneth B.] Keating [of New York]: I object, Mr. Speaker.
        The Speaker: The question is on ordering the previous question.
        The previous question was ordered.
        The Speaker: The question is on the resolution.
        The resolution was agreed to.
        A motion to reconsider was laid on the table.

    The debate that preceded the adoption of the measure included an 
explanation as to its background and purpose: (12)
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12. 101 Cong. Rec. 3569-71, 84th Cong. 1st Sess.
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[[Page 2372]]

        Mr. Smith of Virginia: Mr. Speaker, this resolution is a 
    resolution reported by the Committee on Rules as a general guide 
    for committees in the conduct of their hearings. As you know, there 
    has been a lot of publicity and there has been some criticism about 
    the conduct of hearings, particularly in investigative committees. 
    The purpose here is to lay down a general framework or guide for 
    the use of all legislative committees and may be supplemented by 
    those committees from time to time as the exigencies require, so 
    long as they do not conflict with the general purposes of this. 
    This resolution is intended to lay down the general groundwork that 
    will, perhaps, avoid some of the criticism that has taken place in 
    the past.
        There are two items that I think I should call particular 
    attention to. One is the proviso that no subcommittee shall consist 
    of less than two members. In other words, that abolishes the custom 
    of one-man subcommittees.
        The other is 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.
        I think those are the main things in the bill, except the 
    provision that any witness that is called by an investigative 
    committee shall have the right to have counsel to advise him as to 
    his constitutional rights. . . .
        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, a group of 
    us collaborated with the gentleman from California [Mr. Doyle] in 
    the preparation of House Resolution 151. I was a member of that 
    group. During the course of its consideration I will be glad to try 
    to answer pertinent questions as to the details of the resolution. 
    For the moment, however, I think it would be well for me to discuss 
    the background and the broad outline of the proposal.
        The most important thing to keep in mind is that the resolution 
    simply sets forth minimum standards of conduct, particularly with 
    reference to investigative hearings. Thus the very first paragraph 
    of the resolution provides, ``Committees may adopt additional rules 
    not inconsistent herewith.'' Some committees may want to spell out 
    their rules in greater detail. As a matter of fact, the rules of 
    the House Committee on Un-American Activities are broader than the 
    resolution presently before the House for consideration, but the 
    point is that this particular committee and the other committees 
    which may presently spell out their rules in broader terms than 
    provided in House Resolution 151 could change their rules. Here we 
    are amending the rules of the House itself. Since the rules of the 
    House are binding on its committees, the net result is that the 
    minimum standards of conduct set forth in House Resolution 151 will 
    have to be respected by the committees. In other words, committee 
    rules can provide for more but not less than the requirements set 
    forth in this resolution.
        Mr. [Clarence J.] Brown of Ohio: . . . Now, if I may, I shall 
    try to the best of my ability, to explain in a few very short 
    sentences just what this resolution does. I think the primary 
    object that is accomplished or will be accomplished by the adoption 
    of this resolution is that it does fix definitely in the rules that 
    you cannot have 1-man subcommittees and that any subcommittee

[[Page 2373]]

    taking evidence officially must consist of at least 2 members. Now, 
    it does leave with the legislative committees the power and the 
    authority to expand the rules of the House; in other words, under 
    the present arrangement, each legislative committee, investigative 
    committee, or special committee, is bound by the rules of the House 
    and must follow the rules of the House. But, in addition, the 
    committees now have the right and the authority to adopt additional 
    rules for their own conduct if they so desire. In some instances we 
    have had, more in another legislative body than in this one, 
    subcommittees made up of only one person conducting the hearings. 
    So, this resolution states very plainly in section 2 that each 
    committee may fix the number of its members to constitute a quorum 
    for taking testimony and receiving evidence, which shall be not 
    less than two.
        In other words, the House under its general rules, by the 
    adoption of this resolution, will say that you can fix any number 
    of members on a committee or subcommittee as a quorum, provided you 
    do not go below two; there must be at least two there, and that 
    meets, as the gentleman who just preceded me explained, some of the 
    legal questions that have arisen as the result of the cases taken 
    to the Supreme Court. It cures that.

Criticism of Code of Fair Procedures

Sec. 13.2 The Code of Fair Procedures was criticized in debate at the 
    time of its adoption.

    On Mar. 23, 1955,(13) the Code of Fair Procedures was 
criticized as not providing sufficient safeguards to witnesses by Mr. 
Hugh D. Scott, of Pennsylvania.
---------------------------------------------------------------------------
13. 101 Cong. Rec. 3573, 3574, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. Scott: . . . As has already been pretty generally admitted, 
    the Doyle resolution does not do anything which was not already in 
    the discretion of committee chairmen, that I can see, except as to 
    the two-man quorum, and that is bad. . . .
        The pitifully inadequate Doyle resolution is powerless to 
    prevent any of the following abuses, all of which have been the 
    subject of widespread criticism:
        First. It would allow a committee to circulate ``derogatory 
    information'' from its confidential files without notice to the 
    individuals concerned and without giving him an opportunity to 
    explain or deny the defamatory material.
        Second. It would allow a committee to make public defamatory 
    testimony given at an executive session without notice of hearing 
    to the person defamed.
        Third. It would allow a committee to issue a public report 
    defaming individuals or groups without notice or hearing.
        Fourth. It would allow a committee chairman to initiate an 
    investigation, schedule hearings and subpena witnesses without 
    consulting the full committee.
        Fifth. It would allow a committee chairman or member publicly 
    to defame a witness or a person under investigation.

[[Page 2374]]

        Sixth. It would not allow a person under investigation to 
    cross-examine a witness accusing him at a public hearing.
        Seventh. It would not entitle a witness to even 24 hours 
    advance notice of a hearing at which his career or reputation would 
    be at stake.
        Eighth. It would not protect a witness from distraction, 
    harassment, or nervousness caused by radio, TV, and motion picture 
    coverage of hearing. This, however, is adequately taken care of for 
    the present session by the ruling of the Speaker.(14)
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14. On Feb. 25, 1952, Speaker Sam Rayburn (Tex.), in response to a 
        parliamentary inquiry of the Minority Leader, Joseph W. Martin, 
        Jr. (Mass.), stated, ``. . . There is no authority, and as far 
        as the Chair knows, there is no rule granting the privilege of 
        television of the House of Representatives, and the Chair 
        interprets that as applying to these committees and 
        subcommittees, whether they sit in Washington, or elsewhere. . 
        . .'' See 98 Cong. Rec. 1334, 1335, 82d Cong. 2d Sess., for 
        this ruling and 98 Cong. Rec. 1567-71, 82d Cong. 2d Sess., Feb. 
        27, 1952, for a discussion of this ruling by Members.
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        Ninth. It contains no provision for enforcement of its 
    prohibitions or for supervision of committee operations.
        Tenth. Finally, and most important, it would not prevent the 
    committee from sitting as a legislative court, trying guilt or 
    innocence of individuals, or inquiring into matters wholly 
    unrelated to any function or activity of the United States 
    Government.

    Alternate Codes of Fair Procedures were introduced by a Member 
(15) as House Resolution 447 of the 83d Congress and House 
Resolution 61 of the 84th Congress.(16)
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15. Hugh D. Scott, Jr. (Pa.), who in the 83d Congress chaired the 
        subcommittee of the Committee on Rules which proposed a Code of 
        Fair Procedures. A Republican, Mr. Scott was a majority member 
        of the 83d Congress and a minority member of the 84th Congress. 
        See also 101 Cong. Rec. 218-21, 84th Cong. 1st Sess., Jan. 10, 
        1955, for Mr. Scott's comments on these resolutions.
16. The texts of these resolutions appear at 101 Cong. Rec. 3574, 3575, 
        84th Cong. 1st Sess., Mar. 23, 1955. Final disposition was 
        referral to the Committee on Rules. Mr. Scott also inserted an 
        article from the Virginia Law Review entitled Rules for 
        Congressional Committees: An Analysis of House Resolution 447, 
        which he and Rufus King had written. This article, which 
        includes a compilation of precedents, studies, statutes, and 
        court opinions on investigations, appears at 101 Cong. Rec. 
        3575-81, 84th Cong. 1st Sess., Mar. 23, 1955.
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Quorum

Sec. 13.3 The House amended its rules to provide that, ``Each committee 
    may fix the number of its members to constitute a quorum for taking 
    testimony and receiving evidence, which shall be not less than 
    two.''

    On Mar. 23, 1955,(17) the House by voice vote approved 
House Res

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17. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
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[[Page 2375]]

olution 151, known as the Code of Fair Procedures. One provision of the 
Code relates to the minimum number of members who must attend an 
investigative hearing and the requisite number for a quorum at all 
committee meetings,(18) and provides that, ``Each committee 
may fix the number of its members to constitute a quorum for taking 
testimony and receiving evidence, which shall be not less than two.''
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18. See House Rules and Manual Sec. 735(h) (1973).
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    During the debate, Members discussed the reasons for and 
implications of this amendment.
    Commenting on the effect of the amendment, Mr. Howard W. Smith, of 
Virginia, stated that this amendment ``abolishes the custom of oneman 
subcommittees.'' (19)
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19. 101 Cong. Rec. 3569, 84th Cong. 1st Sess.
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    Mr. Edwin E. Willis, of Louisiana, stated that this amendment was a 
response to the Supreme Court decision in Christoffel v United States, 
338 U.S. 84 (1949), which reversed and remanded a conviction for 
perjury because the government had not proved that a quorum was present 
at the time the allegedly false testimony was given, as required by the 
District of Columbia statute defining perjury as giving false testimony 
under oath before a ``competent tribunal.''
    Mr. Willis also observed: (20)
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20. 101 Cong. Rec. 3571, 84th Cong. 1st Sess.
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        I call to your particular attention the following hint the 
    Supreme Court gave to Congress. In the course of the decision, the 
    Court said:

            It [the Congress] of course has the power (21) 
        to define what tribunal is competent to exact testimony and the 
        conditions that establish its competency to do so.
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21. This ``power'' is the constitutional mandate, `` Each House may 
        determine the Rules of its Proceedings . . .'' Art. I, Sec. 5 
        clause 2.
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        Following that broad hint, the other body amended its rules to 
    provide that at an investigative hearing testimony may be received 
    by one member. Stated differently, the Senate rules now provide 
    that a single member constitutes a quorum.  . . .
        But while the other body amended its rules, we did not. 
    Accordingly, one of the provisions of House Resolution 151 provides 
    as follows:

            Each committee may fix the number of its members to 
        constitute a quorum for taking testimony and receiving 
        evidence, which shall be not less than two.

        I repeat that it is necessary for us to adopt a rule along this 
    line in order to meet the decision of the Supreme Court in the 
    Christoffel case. And I submit that at an investigative hearing a 
    quorum should be not less than two. Of course, even after the 
    passage of

[[Page 2376]]

    this resolution, a particular committee may require a greater 
    number to constitute a quorum, but under the minimum standards of 
    conduct which this resolution imposes, the quorum in no event can 
    be less than two.
        I submit that this is a sensible rule, as are all others 
    embodied in the resolution. I personally oppose a one-man hearing. 
    I think fair play requires that not less than two members should be 
    present. This conforms more closely to our notions of fair 
    proceedings.
        But there is another reason why I think at least two members 
    should be present at all times for taking testimony and receiving 
    evidence. Forget the honest and cooperative witnesses for the 
    moment. They never cause trouble to anyone and, of course, all 
    committees bend backward to protect them. I have in mind the usual 
    witnesses who appear before investigative committees such as the 
    Committee on Un-American Activities of which I have the honor and 
    privilege to be a member. These witnesses are tough. They are 
    resourceful. They are sharp and smart. There is nothing they like 
    better than to precipitate an argument with the presiding member. 
    Yes, they are cunning. They are offensive and sometimes they are 
    downright insulting. The presiding member must be on his toes and 
    he is required to make quick and delicate rulings. Two heads are 
    better than one in situations of this kind.
        And so I am opposed to a one-man hearing, not only for the 
    protection of the witness but more importantly for the preservation 
    of orderly proceedings and the dignity of the committee of 
    Congress.. . .

    The debate also included an exchange regarding applicability of 
this provision: (1)
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 1. 101 Cong. Rec. 3570, 3573, 3582,84th Cong. 1st Sess.
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        Mr. [H.R.] Gross [of Iowa]: Under section 2, subsection (h) 
    each committee may fix the number of its members to constitute a 
    quorum for taking testimony and receiving evidence, which shall be 
    not less than two. Does this mean in the absence of the adoption of 
    rules that every committee, or that a standing committee such as 
    the Committee on the Post Office and Civil Service could proceed 
    with only two members constituting a quorum?
        Mr. Smith of Virginia: Yes; I think that any subcommittee 
    constituted of two members is sufficient.
        Mr. Gross: That is with reference to subcommittees, then rule 
    11 deals with subcommittees, is that correct?
        Mr. Smith of Virginia: To what rule does the gentleman refer?
        Mr. Gross: Rule 11 section 2 (25). Does it deal only with 
    subcommittees?
        Mr. Smith of Virginia: It deals with all committees. . .
        Mr. [Elijah L.] Forrester [of Georgia]: . . . Let me show you 
    gentlemen how hard it is to try to make some sort of provisions on 
    rules of this kind. Take this particular rule of the 2-man 
    committee. We wanted to write into that bill, and it is the sense 
    of those who drew up the bill that where there is a committee of 
    two, they shall be nonpartisan-one shall be a Democrat and one 
    shall be a Republican. If you put that into the bill, and of 
    course, we would like to have the Congress ob

[[Page 2377]]

    serve that, but if you put it into the bill, suppose you are out in 
    California with a 2-man committee and suppose one of the members 
    absented himself or suppose he was sick. Of course, you can see 
    that there they are out in California and they are completely 
    stymied. We did not put it in the bill, but we do think that is a 
    rule that ought to be observed.
        Mr. [Kenneth B.] Keating [of New York]: Mr. Speaker, will the 
    gentleman yield on that point?
        Mr. Forrester: I yield.
        Mr. Keating: With reference to that very provision, is it not 
    the intention of the framers of this resolution that this should 
    apply only to investigative hearings, because, certainly, there are 
    many informal hearings by legislative committees where they take 
    evidence with only one person sitting. It would greatly impede the 
    work of those committees if, in a legislative committee, they were 
    to require, always and without exception, more than one person.
        Mr. Forrester: Of course, that is the answer to that.  . . .

        Mr. Keating: . . . Indeed, I am fearful that the drafters of 
    this resolution have, in one particular, imposed precisely the kind 
    of limitation toward which I expressed unalterable opposition a few 
    moments ago. That is at lines 10 through 12, on page 1, in the 
    provision which allows and requires each committee to fix a number 
    of its members to constitute a quorum, which number shall not be 
    less than 2. This would be an unreasonable handicap and would 
    expose the workings of our committee to exactly the vulnerability 
    which was capitalized upon in the Christoffel case to defeat an 
    otherwise valid conviction.
        The Senate rule on the same subject, adopted after that case to 
    meet the problem, reads as follows:

            Each standing committee, and each subcommittee of any such 
        committee, is authorized to fix a lesser number than one-third 
        of its entire membership who shall constitute a quorum thereof 
        for the purpose of taking sworn testimony.

        You will note that in all cases, under the Senate rule, one-
    third of a committee or subcommittee, including 1 member of a 3-man 
    subcommittee, shall be a quorum for the purpose of taking sworn 
    testimony, and that each committee and subcommittee is expressly 
    authorized to vest this authority in a lesser number if it so 
    wishes. This rule properly protects the committee and vests rights 
    in it without suggesting any crippling restrictions in the event 
    that the committee or subcommittee finds itself dealing with a 
    perjurer.
        The difficulty pointed out in the Christoffel case was that one 
    can only commit perjury before a competent tribunal and the court 
    held that a congressional committee consisting of less than a 
    quorum was not such a tribunal. Even the Senate's one-third rule 
    might give rise to difficulties since it is usual during protracted 
    hearings for individual members to enter and leave the hearing room 
    so long as someone is present and presiding. So the Senate made it 
    possible for its committees, in any case where perjury might be an 
    issue, to authorize a single member to take the testimony and 
    therefore to prevent any recurrence of the Christoffel result.
        The provision in House Resolution 151 which I am discussing 
    does just

[[Page 2378]]

    the opposite; it leaves in doubt what a quorum for the purpose of 
    taking testimony might be in case the committee or subcommittee 
    happens to overlook the formality of prescribing one--and it 
    requires, arbitrarily, at all times and in all cases, that 
    testimony must be taken with at least two members present. I have 
    served as chairman of one of these investigating committees, and I 
    know from personal experience how very difficult it is to keep a 
    multiple quorum in the hearing room and to try to reflect 
    accurately in the record that more than one member is present at 
    all times. We tried, for a while, to have the reporter indicate on 
    the record something like ``at this point Mr. So and So left the 
    hearing room,'' ``at this point Mr. So and So reentered the hearing 
    room,'' and so forth. It just will not work. And if you did not do 
    something like that in a subsequent perjury case long after the 
    facts, the actual physical presence of at least two members would 
    be open to challenge and a necessary subject of proof in court.
        The momentary furor stirred up last year over the subject of 
    so-called one-man committees never impressed me very much. If any 
    abuses were actually attributable to this situation, they were the 
    fault not so much of the one man who ran the hearings, but of the 
    others who, for one reason or another, were not present. In at 
    least 99 out of 100 cases where testimony is to be taken from 
    friendly and cooperative witnesses, it would be a terrible burden 
    and disadvantage to require more than one member attend to build a 
    record of the same; in the 100th case, requiring the presence of 
    two members would not make a great deal of difference anyway. I am 
    strongly opposed to this provision, and, if afforded the 
    opportunity I shall propose an amendment to delete it and offer a 
    substitute.
        In the alternative, if it is the sense of a majority that some 
    protection should be accorded witnesses who are threatened with 
    abuse at the hands of a single member conducting a hearing to take 
    sworn testimony, I would favor the approach recommended by Mr. 
    Scott's subcommittee last year, namely, that such testimony could 
    be taken in all cases by a single member unless the witness himself 
    demanded to be heard by two or more members. Since the whole thing 
    is only for the witness' protection, it makes good sense to let him 
    make the demand if he wishes, and to regard it as waived otherwise.

Announcement of Subject of Investigation

Sec. 13.4 The House amended the rules to provide that, ``The chairman 
    at an investigative hearing shall announce in an opening statement 
    the subject of the investigation.''

    On Mar. 23, 1955,(2) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which requires a chairman to announce the subject of an 
investigation.(3)
---------------------------------------------------------------------------
 2. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
 3. See House Rules and Manual Sec. 735(i) 1973).

---------------------------------------------------------------------------

[[Page 2379]]

    During the debate questions about the effect of this amendment were 
raised: (4)
---------------------------------------------------------------------------
 4. 101 Cong. Rec. 3569, 3572, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [George] Meader [of Michigan]: May I call the gentleman's 
    attention to the first provision on page 2 relating to the 
    statement by the chairman of the subject matter of the 
    investigation. I would like to ask the gentleman three questions 
    with respect to that provision: Does this deprive the committee of 
    the power to determine the scope of its inquiry by requiring the 
    chairman to state the subject of the investigation?
        Mr. [Howard W.] Smith of Virginia: Not at all, no. All that 
    requires is that a general statement shall be made of what a 
    particular hearing is all about.
        Mr. Meader: Second, under court decisions questions in a 
    committee hearing must be pertinent to the inquiry. Would questions 
    not relevant under the statement as made by the chairman but 
    relevant under the committee's investigative jurisdiction have to 
    be answered, or could the witness refuse to answer with impunity?
        Mr. Smith of Virginia: No. The relevancy is determined by the 
    resolution creating the special committee or the provision of the 
    rules defining the jurisdiction of the standing committee.
        Mr. Meader: A third question is, May the statement of the 
    subject matter required to be made by the chairman be in broad 
    terms or must it be detailed?
        Mr. Smith of Virginia: Merely in broad terms, just a general 
    statement of the subject matter of the inquiry.  . . .
        Mr. [Clarence J.] Brown of Ohio: . . . Then it goes further. 
    Remember this deals almost primarily with investigative committees 
    and the conduct of investigations by such committees. It says that 
    the chairman of the committee at the beginning of an investigation 
    shall announce in general terms in an open statement what the 
    subject of the investigation is; in other words, you are looking 
    into the stock market or you are looking into consumer prices or 
    into the necessity for school construction or whatever it may be. 
    It does not mean that you have to pinpoint every single question 
    that you are going to ask, by any means. . . .

    Criticism was made of the wording.(5)
---------------------------------------------------------------------------
 5. 101 Cong. Rec. 3570, 3582, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Kenneth B.] Keating [of New York]: In subdivision (i) at 
    the top of page 2, where it says:

            The chairman at an investigative hearing shall announce in 
        an opening statement the subject of the investigation.

        My understanding is that the resolution authorizing any 
    investigation covers the general subject, and it is the intention 
    of that section to mean he shall announce the subject of the 
    particular hearing which is then about to take place. If that is 
    the understanding, I would think the substitution of the word 
    ``hearing'' for ``investigation'' would be helpful.
        Mr. Smith of Virginia: I think they mean the same thing. I 
    believe you are correct in the statement you have made.

[[Page 2380]]

        Mr. Keating: . . . On page 2, at line 3, the drafters of House 
    Resolution 151 have seemingly chosen the wrong word. It is not 
    important for the chairman to advise those present of the subject 
    to which an investigation is being addressed. That is the subject 
    specified in the committee's authorizing resolution and is known to 
    everybody from the very outset. What is frequently helpful, and 
    might well be required, is a statement of the subject matter of the 
    particular hearing which is about to be commenced. A statement of 
    the latter will advise the witness and his counsel of the specific 
    grounds which the committee proposes to explore, and thus avoid 
    surprise or misunderstanding with respect to the lines of 
    questioning to which the witness is likely to be subjected.

Punishment of Breaches of Order

Sec. 13.5 The House amended its rules to provide that, ``The chairman 
    may punish breaches of order and decorum, and of professional 
    ethics on the part of counsel, by censure and exclusion from the 
    hearings; and the committee may cite the offender to the House for 
    contempt.''

    On Mar. 23, 1955,(6) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which relates to the chairman's authority to punish 
breaches of order and decorum.(7)
---------------------------------------------------------------------------
 6. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
 7. See House Rules and Manual Sec. 735(l) (1973).
---------------------------------------------------------------------------

    During the debate on the resolution, the effect of this provision 
was discussed: (8)
---------------------------------------------------------------------------
 8. 101 Cong. Rec. 3572, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Clarence J.] Brown of Ohio: . . . Then it spells out into 
    law again what I believe the chairman of the committee already has, 
    the power to punish breaches of order and decorum and of 
    professional ethics on the part of counsel, by censure and 
    exclusion from the hearings.
        That legalizes, and it does away with any doubt as to the right 
    of a chairman, in a case like that of Henry Grunewald, which was 
    mentioned a moment ago, to say, `` You are violating the rules of 
    this committee, you are out.'' And he will tell the witness to get 
    another lawyer. And the committee may cite such an offender to the 
    House for contempt. If a lawyer simply does not obey the orders of 
    the chairman, if he creates a disturbance, if he refuses to leave, 
    and the situation becomes serious such that the committee wants to 
    recommend that he be cited by the House for contempt, then that may 
    be done and it is up to the House to take action as it sees fit.

    Parliamentarian's Note: Thus the right of witnesses at 
investigative hearings to be accompanied by their own counsel for 
advice concerning their constitu

[[Page 2381]]

tional rights is conditioned upon that counsel's behavior being 
consistent with professional ethical standards, and a witness must 
select another counsel if counsel is barred from committee hearings by 
unethical behavior.

Subpenas

Sec. 13.6 The House amended the rules to provide that, ``Except as 
    provided in paragraph (m), the chairman shall receive and the 
    committee shall dispose of requests to subpena additional 
    witnesses.''

    On Mar. 23, 1955,(9) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which relates to receiving and disposing of requests to 
subpena additional witnesses.(10)
---------------------------------------------------------------------------
 9. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
10. See House Rules and Manual Sec. 735(n) (1973.)
---------------------------------------------------------------------------

    During the debate, the effect and wording of this provision were 
discussed: (11)
---------------------------------------------------------------------------
11. 101 Cong. Rec. 3570-72, 84th Cong.1st Sess.
---------------------------------------------------------------------------

        Mr. [Kenneth B.] Keating [of New York]: In subsection (m), it 
    provides that if the committee determines that evidence or 
    testimony at an investigative hearing may tend to defame, degrade, 
    or incriminate any person, the committee shall receive and dispose 
    of requests from such person to subpena additional 
    witnesses.(12)
---------------------------------------------------------------------------
12. See Sec. 15.1, infra, for a discussion of subsection (m), relating 
        to the effect of derogatory evidence.
---------------------------------------------------------------------------

        In the next section, it provides that except as above provided, 
    the chairman shall receive and the committee shall dispose of 
    requests to subpena additional witnesses. There is a difference in 
    the language used there. Could the gentleman point out the 
    significance of that or the reason why the different language is 
    used?
        Mr. [Howard W.] Smith of Virginia: It is a very slight 
    difference. You will find that the clause you refer to (3), comes 
    under subsection (m). That is one of the things that apply under 
    subsection (m) where a person is defamed. Subsection (n) is one 
    that does not pertain to that particular section relative to 
    defamation.
        Mr. Keating: I realize that is the language of the resolution, 
    but I wonder why the requests for the issuance of subpenas are 
    differently dealt with. It seems to me that the same considerations 
    should apply in each instance.
        Mr. Smith of Virginia: I do think they are substantially the 
    same. . . .
        Mr. [Clarence J.] Brown of Ohio: . . . Then there is a general 
    provision, not just when some person makes a defamatory statement, 
    but generally and in regard to other matters, the chairman shall 
    receive requests for subpenaing additional witnesses.

Committee Rules

Sec. 13.7 The House amended its rules to provide that, ``A copy

[[Page 2382]]

    of the committee rules, if any, and paragraph 25 of Rule XI of the 
    House of Representatives shall be made available to the witness.''

    On Mar. 23, 1955,(13) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which relates to a witness' access to a copy of committee 
rules.(14)
---------------------------------------------------------------------------
13. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
14. See House Rules and Manual Sec. 735(j) (1973). On Jan. 22,1971, the 
        language of this rule was slightly modified to, ``A copy of the 
        committee rules and this clause shall be made available to each 
        witness.'' See H. Res. 5, adopted at 117 Cong. Rec. 144, 92d 
        Cong. 1st Sess.
---------------------------------------------------------------------------

    During the debate this provision was discussed: (15)
---------------------------------------------------------------------------
15. 101 Cong. Rec. 3572, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Clarence J.] Brown of Ohio: . . . It also provides that a 
    witness who is called before that committee, either by subpena or 
    who comes voluntarily, is entitled to receive a copy of the 
    committee rules, if he so desires. Certainly that is a fair 
    provision.

Transcripts

Sec. 13.8 The House amended its rules to provide that, ``Upon payment 
    of the cost thereof, a witness may obtain a transcript copy of the 
    testimony given at a public session, or, if given at an executive 
    session, when authorized by the committee.''

    On Mar. 23, 1955,(16) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which relates to a witness' access to a 
transcript.(17)
---------------------------------------------------------------------------
16. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
17. See House Rules and Manual Sec. 735(q) (1973).

    During the debate on the measure, this provision was discussed: 
(18)
---------------------------------------------------------------------------
18. 101 Cong. Rec. 3572, 84th Cong. 1st Sess.

        Mr. [Clarence J.] Brown of Ohio: . . . Finally, the witness is 
    given the right, upon payment of the cost thereof, to obtain a 
    transcript copy of his testimony given at a public session or, if 
---------------------------------------------------------------------------
    given at an executive session, when authorized by the committee.

        In other words, if he wants to know what he said, if he is 
    being cited for contempt, he may get a copy of the transcript so 
    that he may be prepared if he has to go to court.

Release of Secret Information

Sec. 13.9 The House amended the rules to provide that, ``No evidence or 
    testimony taken in executive session may be

[[Page 2383]]

    released or used in public sessions without the consent of the 
    committee.''

    On Mar. 23, 1955,(19) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which relates to use of evidence or testimony received in 
executive session.(20)
---------------------------------------------------------------------------
19. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
20. See House Rules and Manual Sec. 735(o) (1973).
---------------------------------------------------------------------------

    During the debate on the measure, this amendment was discussed 
(1)
---------------------------------------------------------------------------
 1. 101 Cong. Rec. 3572, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Clarence J.] Brown of Ohio: . . . It also provides that no 
    evidence or testimony taken in executive session may be released or 
    used in public sessions without the consent of the committee. That 
    means, of course, a majority of the committee.(2)
---------------------------------------------------------------------------
 2. See Sec. 13.2, supra, for criticisms of this and other provisions 
        of the Code of Fair Procedures.
---------------------------------------------------------------------------

Submission of Written Statements

Sec. 13.10 The House amended its rules to provide that, ``In the 
    discretion of the committee, witnesses may submit brief and 
    pertinent sworn statements in writing for inclusion in the record. 
    The committee is the sole judge of the pertinency of testimony and 
    evidence adduced at its hearing.''

    On Mar. 23, 1955,(3) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which relates to a witness' opportunity to submit sworn 
statements.(4)
---------------------------------------------------------------------------
 3. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
 4. See House Rules and Manual Sec. 735(p) (1973).
---------------------------------------------------------------------------

    During the debate, this provision was discussed: (5)
---------------------------------------------------------------------------
 5. 101 Cong. Rec. 3572, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Clarence J.] Brown of Ohio: . . . It also provides that in 
    the discretion of the committee witnesses may submit brief and 
    pertinent sworn statements in writing for inclusion in the record. 
    Members of the House know how much time that can save.
        The committee is the sole judge of the pertinency of the 
    testimony and evidence adduced at its hearing.
        I think they have that right now.

Media Coverage

Sec. 13.11 The House amended its rules to provide that, ``No witness 
    served with a subpena by the committee shall be required against 
    his will to be photographed at any

[[Page 2384]]

    hearing or to give evidence or testimony while the broadcasting of 
    that hearing, by radio or television, is being conducted. At the 
    request of each witness who does not wish to be subjected to radio, 
    television, or still photography coverage, all lenses shall be 
    covered and all microphones used for coverage turned off. This 
    paragraph is supplementary to paragraph (m) of clause 27 of this 
    rule, relating to the protection of the rights of witnesses.''

    On Jan. 22, 1971,(6) the House approved House Resolution 
5, which adopted applicable provisions of the Legislative 
Reorganization Act of 1970,(7) including a rule 
(8) which requires any committee that permits media coverage 
of public hearings to adopt rules allowing witnesses not to be exposed 
to television or still cameras or microphones.
---------------------------------------------------------------------------
 6. 117 Cong. Rec. 144, 92d Cong. 1st Sess.
 7. 84 Stat. 1140, Pub. L. No. 91-510, Oct. 26, 1970.
 8. See House Rules and Manual Sec. 739(b) (1973).
---------------------------------------------------------------------------

Responsibility to Protect Rights

Sec. 13.12 The witness is primarily responsible for protecting his 
    rights and invoking procedural safeguards guaranteed under the 
    rules of the House, notwithstanding the fact that he may be 
    accompanied by counsel to advise him of his rights.

    On Oct. 18, 1966,(9) during consideration of a 
privileged report, House Report No. 2305, relating to the refusal of 
Yolanda Hall to testify before the House Committee on Un-American 
Activities,(10) Speaker John W. McCormack, of Massachusetts, 
responded to a parliamentary inquiry regarding the responsibility of a 
witness to protect his rights.
---------------------------------------------------------------------------
 9. 112 Cong. Rec. 27495, 89th Cong. 2d Sess.
10. See Sec. 15.6, infra, for the point of order and debate regarding 
        this report.
---------------------------------------------------------------------------

        Mr. [Sidney R.] Yates [of Illinois]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state his parliamentary 
    inquiry.
        Mr. Yates: Mr. Speaker, is it in order for me to request the 
    Chair for an explanation of a part of the Chair's ruling; namely, 
    that part which is directed to the representation before a 
    committee of a witness by a lawyer?
        In his ruling the Chair has indicated that counsel does not, as 
    a matter of right, have the right to present argument, make motion, 
    or make demands on the committee.
        Does this mean, Mr. Speaker, that if an objection is to be 
    voiced to an action

[[Page 2385]]

    by the committee, that the objection must be made by the witness or 
    the respondent himself, rather than by the counsel of the witness?
        The Speaker: It is incumbent upon the witness to protect 
    himself, after consulting counsel, if he desires to consult 
    counsel. But it is the duty of the witness to do so.