[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[D. Authority in Cases of Contempt]
[Â§ 17. In General]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2409-2416]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                   D. AUTHORITY IN CASES OF CONTEMPT
 
Sec. 17. In General


    The House may try a contumacious witness at its bar (7) 
or pur

[[Page 2410]]

sue procedures authorized by 2 USC Sec. Sec. 192-194, criminal contempt 
statutes passed in 1857. These statutes reflected the need for more 
effective sanctions and a more appropriate forum to compel disclosure 
from a recalcitrant witness than merely ordering him held in custody 
until he agreed to testify. A major shortcoming of trial before the 
bar, in addition to the inappropriateness of the House's procedures 
when functioning as a judicial tribunal, and the lack of precedent on 
due process requirements, was that the witness could be imprisoned only 
as long as the House remained in session.(8) The statute 
designates as a misdemeanor willful (9) default or refusal 
to answer any question (10) pertinent (11) to the 
question under inquiry (12) by any person who has been 
summoned as a witness (13) by authority of either House of 
Congress to give testimony or to produce papers upon any matter under 
inquiry before either House, or any joint committee established by a 
joint or concurrent resolution of the two Houses of Congress, or any 
committee of either House of Congress. Punishment for violation of the 
statute is a fine of not more than $1,000 nor less than $100, and 
imprisonment for not less than one month nor more than 12 months. This 
statute has withstood constitutional challenges. The Supreme Court 
(14) rejected the contention that reference to ``any'' 
matter under inquiry was fatally defective because it was unlimited in 
its extent. In reaching this conclusion the court stated that, ``. . . 
statutes should receive a sensible construction, such as will 
effectuate the legislative intention, and, if possible . . . avoid an 
unjust or absurd conclusion'' and interpreted the word ``any'' to apply 
to ``. . . matters within the jurisdiction of the two Houses of 
Congress, before them for consideration and proper for their action, to 
questions perti

[[Page 2411]]

nent thereto, and to facts or papers appearing therein.'' In the same 
case the court found that the adoption of a statute designed to aid 
each House of Congress in the discharge of its constitutional functions 
did not constitute an improper delegation of power to punish contempt.
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 7. Parliamentarian's Note: No contumacious witness has been tried at 
        the bar of the House or Senate between 1936 and 1973. In Groppi 
        v Leslie, 404 U.S. 496 (1972), a decision which reviewed an 
        action of the Wisconsin legislature but nonetheless rested on 
        congressional precedents, the U.S. Supreme Court held that a 
        witness may not be punished for contempt unless he has been 
        accorded due process of law in a proceeding that leads to a 
        finding of guilt. Although a legislative body does not have to 
        accord all the procedural rights that a court must accord, it 
        must grant notice and an opportunity for a hearing.
 8. This description of the statute is taken from Watkins v United 
        States, 354 U.S. 178, 207 n. 45 (1957).
 9. See Sec. 7, supra, for a discussion of willfulness as it relates to 
        intent of the witness.
10. See Sec. 20, infra, for a discussion of particular conduct as 
        contumacious.
11. See Sec. 6, supra, for a discussion of pertinence.
12. See Sec. 1, supra, for a discussion of the permissible scope of 
        legislative inquiry.
13. See Sec. 16, supra, for a discussion of summoning witnesses.
14. In re Chapman, 166 U.S. 661, 667 (1897). 2 Hinds' Precedents 
        Sec. 1614.
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    A court of appeals (15) rejected the argument that 2 USC 
Sec. 192 violated the ``necessary and proper'' clause of article 1, 
section 8, because the inherent power of Congress to compel attendance 
by civil contempt was a better means to achieve the legitimate 
congressional end of obtaining information than was criminal contempt. 
The court found that the decision to add criminal contempt powers to 
its inherent powers to insure the cooperation of witnesses provided a 
rational basis on which to enact 2 USC Sec. 192. It was unwilling to 
strike down a means reasonably calculated to accomplish a valid 
congressional end simply because someone could conceive of an arguably 
better means to accomplish that end.
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15. United States v Fort, 443 F2d 670, 676 (D.C. Cir. 1970), cert. 
        denied, 403 U.S. 932 (1971).
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    2 USC Sec. 193 provides that no witness is privileged to refuse to 
testify to any fact, or to produce any paper on the ground that his 
testimony to such fact or his production of such paper may tend to 
disgrace him or otherwise render him infamous. 2 USC Sec. 194 
establishes a procedure for certification of a contempt citation to the 
appropriate U.S. Attorney.(16)
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16. See Sec. 22, infra, for a discussion of this statute.
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    The following steps precede judicial proceedings under 2 USC 
Sec. Sec. 192-194: (1) approval by the committee, (2) calling up and 
reading the committee report on the floor,(17) (3) either 
(if Congress is in session) House approval of a resolution authorizing 
the Speaker to certify the report to the U.S. Attorney for prosecution, 
or (18) (if Congress is not in session) an independent 
determination by the Speaker to certify the report,(19) (4) 
certification by the Speaker to the appropriate U.S. Attorney for 
prosecution.(20)
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17. See Sec. Sec. 20.1, 20.3, 20.5, 20.7, 20.9, infra, for examples.
18. See Sec. Sec. 20.2, 20.4, 20.6, 20.8, 20.10, and 22.1, infra, for 
        examples.
19. See summary and analysis in Sec. 22, infra, for a discussion of 
        Wilson, et al. v United States, which held that the Speaker, 
        acting in the place of the House, must exercise independent 
        judgment.
20. See all precedents in Sec. 22, infra, for examples.
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    The remaining sections in this chapter deal with proceedings

[[Page 2412]]

after a committee has voted to cite a witness for contempt and prior to 
grand jury action.(1)
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 1. For earlier precedents, see 2 Hinds' Precedents Sec. Sec. 1597-
        1640, 3 Hinds' Precedents Sec. Sec. 1666-1724, and 6 Cannon's 
        Precedents Sec. Sec. 332-353. For other materials, see 
        Goldfarb, Ronald L., The Contempt Power, Columbia University 
        Press, N.Y., 1963 (this work also discusses contempt of 
        judicial proceedings); Sky, T., Judicial Reviews of 
        Congressional Investigations--Is There an Alternative to 
        Contempt? 31 Geo. Wash. L. Rev. 399 (1962); Beck, Carl, 
        Contempt of Congress, A Study of the Prosecutions Initiated by 
        the Committee on UnAmerican Activities, 1945-1957, The Hauser 
        Press, New Orleans, 1959; and Willis, Power of Legislative 
        Bodies to Punish for Contempt, 2 Ind. L. J. 61 
        (1957).                          -------------------
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Recommittal

Sec. 17.1 The House may recommit a resolution certifying the contempt 
    of a committee witness to the committee which reported the 
    contumacious conduct.

    On July 13, 1971,(2) the House on a roll call vote 
recommitted a resolution certifying contempt of a witness before the 
Committee on Interstate and Foreign Commerce.(3)
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 2. 117 Cong. Rec. 24723, 24752, 24753, 92d Cong. 1st Sess.
 3. The Committee on Interstate and Foreign Commerce recommended the 
        contempt citation by a vote of 25 to 23, in an executive 
        session on July 1, 1971. See 117 Cong. Rec. 24723, 92d Cong. 
        1st Sess., July 13, 1971.
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        Mr. [Harley O.] Staggers [of West Virginia]: Mr. Speaker, I 
    offer a privileged resolution, by direction of the Committee on 
    Interstate and Foreign Commerce, and ask for its immediate 
    consideration.
        The Clerk read the resolution as follows:

                                  H. Res. 534

            Resolved, That the Speaker of the House of Representatives 
        certify the report of the Committee on Interstate and Foreign 
        Commerce of the House of Representatives as to the contumacious 
        conduct of the Columbia Broadcasting System, Incorporated, and 
        of Dr. Frank Stanton, its President, in failing and refusing to 
        produce certain pertinent materials in compliance with a 
        subpena duces lecum of a duly constituted subcommittee of said 
        committee served upon Dr. Stanton and the Columbia Broadcasting 
        System, Incorporated, and as ordered by the subcommittee, 
        together with all the facts in connection therewith, under the 
        seal of the House of Representatives, to the United States 
        Attorney for the District of Columbia, to the end that Dr. 
        Frank Stanton and the Columbia Broadcasting System, 
        Incorporated, may be proceeded against in the manner and form 
        provided by law.

        The Speaker: (4) The gentleman from West Virginia 
    (Mr. Staggers) is recognized for one hour. . . .
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 4. Carl Albert (Okla.).
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        Mr. Staggers: Mr. Speaker, I move the previous question on the 
    resolution.

[[Page 2413]]

        The previous question was ordered.

                  Motion to Recommit Offered by Mr. Keith

        Mr. [Hastings] Keith [of Massachusetts]: Mr. Speaker, I offer a 
    motion to recommit.
        The Speaker: Is the gentleman opposed to the resolution?
        Mr. Keith: I am, Mr. Speaker.
        The Speaker: The Clerk will report the motion to recommit.
        The Clerk read as follows:

            Mr. Keith moves to recommit House Resolution 534 to the 
        Committee on Interstate and Foreign Commerce.

        The Speaker: Without objection, the previous question is 
    ordered on the motion to recommit.
        There was no objection.
        The Speaker: The question is on the motion to recommit.
        The question was taken; and on a division (demanded by Mr. 
    Keith), there were--ayes 151, noes 147.
        Mr. Staggers: Mr. Speaker, on that I demand the yeas and nays.
        The yeas and nays were ordered. . . .
        The question was taken; and there were--yeas 226, nays 181, 
    answered ``present'' 2, not voting 24, as follows: . . .
        So the motion to recommit was agreed to.

Sec. 17.2 The House rejected a motion to recommit to a select committee 
    a privileged resolution from the Committee on Un-American 
    Activities which authorized the Speaker to certify a contempt 
    citation to the U.S. Attorney.

    On Oct. 18, 1966,(5) the House by a roll call vote of 90 
yeas, 181 nays, and 161 not voting, rejected a motion to recommit to a 
select committee a privileged resolution authorizing the Speaker to 
certify a committee report to the U.S. Attorney. The report cited 
Milton Mitchell Cohen in contempt for refusal to answer questions 
before the Committee on Un-American Activities. The select committee 
would have been instructed to examine the sufficiency of the 
citation.(6)
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 5. 112 Cong. Rec. 27448, 27484, 27485, 89th Cong. 2d Sess.
 6. See also, for example, 112 Cong. Rec. 27511, 27512, 89th Cong. 2d 
        Sess., Oct. 18, 1966, for rejection on a roll call vote of 54 
        yeas to 182 nays of a motion by Mr. Sidney R. Yates (Ill.), to 
        recommit to a select committee privileged H. Res. 1062, 
        authorizing the Speaker to certify to a U.S. Attorney H. Rept. 
        No. 2306, relating to the refusal of Dr. Jeremiah Stamler to 
        testify before the Committee on Un-American Activities.
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                 Proceedings Against Milton Mitchell Cohen

        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, I offer a 
    privileged resolution (H. Res. 1060) from the Committee on Un-
    American Activities and ask for its immediate consideration.

[[Page 2414]]

        The Clerk read the resolution, as follows:

                                  H. Res. 1060

            Resolved, That the Speaker of the House of Representatives 
        certify the report of the Committee on Un-American Activities 
        of the House of Representatives as to the refusals of Milton 
        Mitchell Cohen to answer questions pertinent to the subject 
        under inquiry before a duly authorized subcommittee of the said 
        Committee on Un-American Activities, and his departure without 
        leave, together with all the facts in connection therewith, 
        under the seal of the House of Representatives, to the United 
        States attorney for the northern district of Illinois, to the 
        end that the said Milton Mitchell Cohen may be proceeded 
        against in the manner and form provided by law. . . .

        The previous question was ordered.
        The Speaker: (7) The question is on the resolution.
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 7. John W. McCormack (Mass.).
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        For what purpose does the gentleman from Massachusetts rise?
        Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Speaker, I offer 
    a motion to recommit.
        The Speaker: Is the gentleman opposed to the resolution?
        Mr. Conte: I am, Mr. Speaker.
        The Speaker: The Clerk will report the motion to recommit.
        The Clerk read as follows:

            Mr. Conte moves to recommit the resolution of the Committee 
        on Un-American Activities to a select committee of seven 
        Members to be appointed by the Speaker with instructions to 
        examine the sufficiency of the contempt citations under 
        existing rules of law and relevant judicial decisions and 
        thereafter to report it back to the House, while Congress is in 
        session, or, when Congress is not in session, to the Speaker of 
        the House, with a statement to its findings.(8)
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 8. See 112 Cong. Rec. 27461, 27462, 89th Cong. 2d Sess., Oct. 18, 
        1966, for a statement in which Mr. Conte indicated that a 
        reason for the motion to recommit was the lawsuit filed by the 
        witness, Milton Mitchell Cohen, and others challenging the 
        constitutionality of the authority and procedures of the 
        Committee on Un-American Activities.
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        The Speaker: Without objection, the previous question is 
    ordered.
        The question is on the motion to recommit.
        The question was taken.
        Mr. Conte: Mr. Speaker, I object to the vote on the ground that 
    a quorum is not present and make the point of order that a quorum 
    is not present.
        The Speaker: Evidently a quorum is not present.
        The Doorkeeper will close the doors; the Sergeant at Arms will 
    notify absent Members, and the Clerk will call the roll.
        The question was taken; and there were--yeas 90, nays 181, not 
    voting 161, as follows: . . .
        The result of the vote was announced as above recorded.
        The doors were opened.
        The Speaker: The question is on the adoption of the resolution.
        The question was taken, and the Speaker announced that the ayes 
    appeared to have it.
        Mr. [James C.] Cleveland [of New Hampshire]: Mr. Speaker, on 
    that I demand the yeas and nays.

[[Page 2415]]

        The yeas and nays were refused.
        So the resolution was agreed to.
        A motion to reconsider was laid on the table.

Divisibility

Sec. 17.3 The Speaker stated that a resolution directing the Speaker to 
    certify a report citing certain witnesses for contempt for refusing 
    to testify and submit subpenaed materials was not divisible.

    On May 28, 1936,(9) Speaker Joseph W. Byrns, of 
Tennessee, responded to a parliamentary inquiry regarding divisibility 
of a resolution authorizing the Speaker to certify to the U.S. Attorney 
House Report No. 2857.
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 9. 80 Cong Rec. 8222, 74th Cong. 2d Sess.
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        Mr. [C. Jasper] Bell [of Missouri]: Mr. Speaker, by direction 
    of the select committee, I now present a privileged resolution and 
    send it to the Clerks desk and ask that it be read.
        The Clerk read as follows:

                              House Resolution 532

            Resolved, That the Speaker of the House of Representatives 
        certify the report of the Select Committee to Investigate Old 
        Age Pension Plans as to the willful and deliberate refusal of 
        Francis E. Townsend, Clinton Wunder, and John B. Kiefer to 
        testify before said committee, together with all the facts in 
        connection therewith, under seal of the House of 
        Representatives, to the United States attorney for the District 
        of Columbia, to the end that the said Francis E. Townsend, 
        Clinton Wunder, and John B. Kiefer may be proceeded against in 
        the manner and form provided by law. . . .

        The Speaker: The Chair recognizes the gentleman from Missouri.
        Mr. [Everett M.] Dirksen [of Illinois]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Dirksen: Is the resolution divisible as to the three 
    gentlemen named?
        The Speaker: It is not.(10)
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10. See Sec. 17.4, infra, in which all but one of the names of persons 
        listed in such a resolution were deleted by amendment.
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Deletion of Names of Persons Not Subpenaed

Sec. 17.4 The House amended a resolution citing persons for contempt by 
    deleting the names of all who had not been subpenaed, leaving only 
    the name of Dr. Edward K. Barsky.

    On Mar. 28, 1946,(11) the House by voice vote agreed to 
an amendment deleting the names of all persons who had not been 
subpenaed from House Resolution 573, authorizing the Speaker to certify 
to the U.S. Attorney the report of the Committee on Un-American
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11. 92 Cong. Rec. 2745, 2749, 79th Cong. 2d Sess.
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[[Page 2416]]

Activities regarding refusal to produce requested records, books, and 
papers.

        Mr. [John S.] Wood [of Georgia]: 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 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, 286 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. Wood: Mr. Speaker, I offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Wood: Strike from the resolution 
        the names of all individuals except that of Edward K. Barsky.

        The amendment was agreed to.

    Parliamentarian's Note: Dr. Barsky was the only person who had been 
subpenaed. All the others, members of the executive board of the 
organization, were cited in the report and resolution because the board 
refused to permit Dr. Barsky to produce the subpenaed materials. Mr. 
Wood was Chairman of the Committee on Un-American 
Activities.(12)
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12. See 92 Cong. Rec. 2744, 2745, 79th Cong. 2d Sess., for the text of 
        the report and Sec. 19.4, infra, for a discussion of this 
        incident as it relates to a point of order challenging citation 
        of persons who had not been subpenaed.
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