[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 14. Right to Counsel]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2385-2389]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 14. --Right to Counsel

    A witness' right to counsel (11) at an investigative 
hearing (12) is circumscribed by rules of the 
House,(13) rules of committees, precedents,(14) 
and court decisions. Rules of the House establish a minimum level of 
participation by counsel; committees either in their rules or in 
response to requests made at a hearing, may permit a counsel to do more 
than advise the witness about constitutional rights.
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11. See, for example, 3 Hinds' Precedents Sec. Sec. 1696, 1741, 1771, 
        1788, 1837, 1846; 6 Cannon's Precedents Sec. 400. 6 Cannon's 
        Precedents Sec. 336, for earlier precedents. For collateral 
        sources, see Rauh, Joseph L., Jr., Representation before 
        Congressional Committee Hearings, 50 J. of Crim. Law, 
        Criminology, and Police Science 219 (1959), and Rauh and 
        Pollitt, Right to and Nature of Representation before 
        Congressional Committees, 45 Minn. L. Rev. 853 (1961).
12. This section deals only with investigative hearings on designated 
        subject matters; it does not include investigations relating to 
        impeachment (see Ch. 14, supra), election contests (see Ch. 9, 
        supra), or conduct of Members (see Ch. 12, supra).
13. See Sec. Sec. 14.1 and 14.2, infra.
14. See Sec. Sec. 14.3 to 14.5, infra.
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    The Supreme Court implicitly approved a rule of the Committee on 
Un-American Activities which permitted counsel to accompany a witness 
for the purpose of advising him of his constitutional rights when it 
observed, ``[Counsel for the witness] would not have been justified in 
continuing [seeking to read certain telegrams into the record], since 
Committee rules permit counsel only to advise a witness, not to engage 
in oral argument with the committee. Rule VII (b).''(15)
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15. Yellin v United States, 374 U.S. 109, 112, 113 
        (1963).                          -------------------
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In General

Sec. 14.1 The House amended its rules to provide that, ``Witnesses at 
    investigative hearings may be accompanied by their own counsel for 
    the purpose of advising them of their constitutional rights.''

    On Mar. 23, 1955,(16) the House by voice vote approved 
House Res
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16. 101 Cong Rec. 3569, 3585, 84th Cong. 1st Sess.
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[[Page 2386]]

olution 151, known as the Code of Fair Procedures, a provision of which 
permits witnesses at hearings to be accompanied by 
counsel.(17)
    During the debate, questions were raised as to the effect of this 
provision: (18)

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17. See House Rules and Manual Sec. 735(k) (1973).
18. 101 Cong Rec. 3569, 3572, 3582, 3583, 84th Cong. 1st Sess.
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        Mr. [George] Meader [of Michigan]: May I draw the gentleman's 
    attention to the provisions of paragraph (k) on that same page, 
    lines 7, 8, and 9, relating to the right of witnesses to have 
    counsel present at hearings. My question is, Would the absence of 
    counsel where a witness demands the right to have counsel present 
    vitiate the legal status of the inquiry?
        Mr. [Howard W.] Smith of Virginia: By no means. This is merely 
    a privilege given to him. If he does not choose to exercise that 
    privilege of having counsel, that is his fault.
        Mr. Meader: If he should demand that he be permitted to have 
    counsel but there was no counsel present, would the committee be 
    unable to proceed until counsel was present?
        Mr. Smith of Virginia: If he does not have his counsel, of 
    course he cannot obstruct justice by using that sort of subterfuge. 
    I have no doubt that any committee would be reasonable with him by 
    reason of the sickness of his counsel.
        Mr. Meader: But the committee has not lost control over the 
    proceeding because of this provision?
        Mr. Smith of Virginia: Not by any means.
        Mr. Meader: I think the gentleman may remember that Henry 
    Grunewald and his counsel, William Power Maloney, delayed the King 
    Subcommittee of the Ways and Means Committee for 6 hours with 
    obstructionist tactics. Grunewald refused to testify because the 
    committee finally ejected Maloney and he did not have any counsel 
    there.
        Mr. Smith of Virginia: That could not occur under this rule. . 
    . .
        Mr. [Clarence J.] Brown [of Ohio]: . . . The next provision 
    provides for witnesses at investigative hearings--that does not 
    mean ordinary legislative hearings where they are discussing a 
    bill, such as a public-works project or an authorization bill, but 
    where a committee is holding investigative hearings--that witnesses 
    have the right to be accompanied by their own counsel, and that 
    counsel shall have the privilege of advising them concerning their 
    constitutional rights.
        That does not mean that the lawyer may sit there and answer 
    every question of fact for the witness. But he may advise him as to 
    his constitutional rights, whether he may plead the fifth amendment 
    or refuse to answer on some other ground if he thinks his 
    constitutional rights are being violated.
        Mr. [Kenneth B.] Keating [of New York]: . . . At lines 7 
    through 9 on page 2, I am troubled with the language chosen by the 
    draftsmen, and wonder if it is exactly what was intended. Does this 
    wording include an absolute right to be present in the event that a 
    witness is heard in an executive session? Does it mean merely

[[Page 2387]]

    to be present in the room or to accompany the witness when he takes 
    the stand, and if the latter, does it create a right to consult and 
    confer without limitation during the course of the examination? 
    Does the limitation, ``concerning their constitutional rights'' 
    mean that counsel would be limited, in conferring with his client, 
    to a discussion of the first or fifth amendments, which are the 
    only constitutional provisions likely to be involved at any time, 
    under normal circumstances?
        May counsel not perform the usual and proper services of 
    explanation and advice with respect to all the rights and duties 
    pertaining to the status of the witness before the committee? . . .

    Mr. Keating's inquiries were not directly addressed. He had, in 
earlier remarks, given his views on the background of the right to 
counsel: (19)
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19. 101 Cong. Rec. 3582, 84th Cong. 1st Sess.
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        [W]e have long conceded that outsiders, appearing as witnesses 
    before our committees, should be accorded certain rights. There is 
    no specific basis for the right of a witness to be accompanied and 
    advised by his counsel, nor for recognition of the traditional 
    privileges of lawyer and client, doctor and patient, priest and 
    penitent, and the like. But they are so universally accorded, and 
    so deeply woven into our traditions of fairness and due process 
    that they perhaps should be specified for the advice and comfort of 
    all those who are called to testify. It is, as I said, only a 
    matter of drawing the lines clearly and precisely where we wish 
    them to lie.

Sec. 14.2 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,(20) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, one 
provision of which dealt with the powers of the chairman in maintaining 
order.(1) During the debate on the resolution, the effect of 
this provision was discussed: (2)
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20. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
 1. See House Rules and Manual Sec. 735(1) (1973).
 2. 101 Cong. Rec. 3572, 84th Cong. 1st Sess.
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        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

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    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.

Counsel's Participation

Sec. 14.3 The privilege granted by the rule, permitting a witness at an 
    investigative hearing to be accompanied by counsel to advise him of 
    his constitutional rights, does not, as a matter of right, entitle 
    the counsel to present argument, make motions, or make demands on 
    the committee.

    On Oct. 18, 1966,(3) Speaker John W. McCormack, of 
Massachusetts, during the ruling on a point of order raised against 
House Report 2305, relating to the refusal of Yolanda Hall to testify 
before the Committee on Un-American Activities,(4) indicated 
the scope of authority of counsel in advising a witness during an 
investigative hearing.(5)
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 3. 112 Cong. Rec. 27494, 27495, 89th Cong. 2d Sess. See also House 
        Rules and Manual Sec. 735(k) (1973).
 4. See Sec. 15.6, infra, for the point of order and debate on this 
        report.
 5. The Speaker expressed the same view of the authority of counsel in 
        responses to points of order raised against two House reports 
        relating to refusals to testify before the Committee on Un-
        American Activities. See 112 Cong. Rec. 27448, 89th Cong. 2d 
        Sess., Oct. 18, 1966, and 112 Cong. Rec. 27505, 89th Cong. 2d 
        Sess., Oct. 18, 1966, for the rulings on points of order 
        against H. Rept. No. 2302, the refusal of Milton Mitchell 
        Cohen, and H. Rept. No. 2306, the refusal of Dr. Jeremiah 
        Stamler.
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        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 26(m)--and, at the demand of the 
    witnesses' attorney, take the testimony in executive session rather 
    than in an open hearing. . .
        The Chair will also point out parenthetically, that subsection 
    (k) of rule XI, provides:

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

        This privilege, unlike advocacy in a court, does not as a 
    matter of right entitle the attorney to present argument, make 
    motions, or make demands on the committee.

Sec. 14.4 Although a witness at an investigative hearing, under

[[Page 2389]]

    the House rules, may be accompanied by counsel to advise him of his 
    constitutional rights, the witness and not counsel is primarily 
    responsible for protecting his rights and invoking procedural 
    safeguards guaranteed under the rules of the House.

    On Oct. 18, 1966,(6) 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,(7) Speaker John W. McCormack, of Massachusetts, 
responded to a parliamentary inquiry regarding the responsibility of a 
witness to protect his rights.
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 6. 112 Cong. Rec. 27495, 89th Cong. 2d Sess. See House Rules and 
        Manual Sec. 735(k) (1973) .
 7. See Sec. 15.6, infra, for this report.
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        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 
    motions, or make demands on the committee.
        Does this mean, Mr. Speaker, that if an objection is to be 
    voiced to an action 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.

Sec. 14.5 A House committee has discretion to refuse to allow demands 
    of counsel at an investigative hearing and it may reject an 
    attorney's demand that certain evidence be taken in executive 
    session or require the witness personally to raise the issue.

    On Oct. 18, 1966,(8) 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,(9) the Speaker indicated that a demand that 
testimony be taken in executive session could be rejected at the 
discretion of the committee.(10)
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 8. 112 Cong. Rec. 27495, 89th Cong. 2d Sess.
 9. See Sec. 15.6, infra, for this report.
10. See the ruling of Speaker John W. McCormack (Mass.), discussed in 
        Sec. 14.3, supra.

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