[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[D. Authority in Cases of Contempt]
[Â§ 22. Certification to U.S. Attorney]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2458-2467]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                   D. AUTHORITY IN CASES OF CONTEMPT
 
Sec. 22. Certification to U.S. Attorney

    A statute (2) imposes a duty on the Speaker of the House 
or President of the Senate to certify to the appropriate U.S. Attorney 
statements of facts relating to contumacious conduct of witnesses. The 
statute requires a committee to report such facts to the House or 
Senate when Congress is in session, or to the Speaker or President of 
the Senate when Congress is not in session.
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 2. 2 USC Sec. 94. See 3 Hinds' Precedents Sec. Sec. 1672, and 1691 for 
        earlier precedents relating to certification.
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    When either the House or Senate receives a report of contumacious 
conduct from a committee, it routinely considers a resolution offered 
by a committee member authorizing the Speaker or President of the 
Senate to certify the facts to the U.S. Attorney. By reviewing this 
resolution, the body checks the action of the committee.

[[Page 2459]]

    Although the necessity of a certification as a prerequisite to 
prosecution has long been assumed,(3) some conflict has 
arisen among different jurisdictions with respect to such requirement. 
One district court held that an indictment which failed to set forth 
compliance with the procedure outlined in 2 USC Sec. 194 was not 
fatally defective and should not be dismissed; (4) another, 
in a habeas corpus proceeding, held that a person charged with a 
violation of the contempt statute, 2 USC Sec. 192, for refusal to 
testify before a committee could not legally be held under a warrant 
issued by a U.S. Commissioner which was based on an affidavit of the 
secretary of the Committee on Un-American Activities and not on a 
certification from the Speaker.(5)
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 3. In re Chapman, 166 U.S. 661, 667 [1897] (see 2 Hinds' Precedents 
        Sec. Sec. 1612-1614 for a discussion of this ease); United 
        States v Costello, 198 F2d 200, 204 (2d Cir. 1952), cert. 
        denied, 344 U.S. 374 (1952); and Wilson v United States, 369 
        F2d 198 (D.C. Cir. 1966).
 4. Ex Parte Frankfeld, 32 F Supp 915 (D.D.C. 1940).
 5. United States v Josephson, 74 F Supp 958 (S.D. N.Y. 1947), aff'd., 
        165 F2d 82 (2d Cir. 1947); cert. denied, 333 U.S. 838 (1948).
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    The portion of the statute which authorizes the Speaker or 
President of the Senate, without action of the House or Senate, to 
certify statements of facts he receives while Congress is not in 
session--a procedure designed to avoid delay in prosecuting 
contumacious witnesses--was interpreted in one case to be not automatic 
but discretionary.(6) Thus, it was held that, in order to 
furnish the protection afforded by legislative review of contempt 
citations, the Speaker or President of the Senate must act in place of 
the full House or Senate in such circumstances, by examining the merits 
of the citation. The Speaker, stated the three-judge court, in a two to 
one opinion, erred in interpreting the statute to prohibit him from 
exercising his independent judgment notwithstanding any reservations he 
had about the validity of the committee's contempt citation. 
Accordingly, the court reversed the contempt convictions in the 
case.(7)
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 6. Wilson, et al. v United States, 369 F2d 198 (D.C. Cir. 1966). See 
        Sec. 22.8, infra, for further discussion.
 7. This ruling would not affect the principle (Sec. 22.2, infra) that 
        no action of the House is necessary when the Speaker certifies 
        a statement of facts to the U.S. Attorney, inasmuch as the 
        ruling deals only with the duty of the Speaker.
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    Failure to make a report or issue a certificate has been held to be 
a matter to be raised by way of defense.(8)
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 8. In re Chapman, 166 U.S. 661, 667 (1897), discussed at 2 Hinds' 
        Precedents Sec. 1614; United States v Dennis, 72 F Supp 417, 
        422 (D.D.C. 1947), aff'd. 171 F2d 986 (D.C. Cir. 1948), aff'd. 
        339 U.S. 162 (1950), and United States v Shelton, 211 F Supp 
        869 (D.D.C. 1962).

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[[Page 2460]]

During Congressional Session

Sec. 22.1 A contempt citation reported while Congress is in session is 
    certified to the appropriate U.S. Attorney by the Speaker by 
    authority of a privileged resolution.

    On Sept. 3, 1959,(9) the House by voice vote approved a 
resolution authorizing the Speaker to certify to U.S. Attorney a report 
citing a witness in contempt.(10)
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 9. 105 Cong. Rec. 17945, 86th Cong. 1st Sess.; see also, for example, 
        Sec. Sec. 20.2, 20.4, 20.6, 20.8, and 20.10, supra, for other 
        resolutions authorizing the Speaker to certify reports to the 
        U.S. Attorney.
10. See 22.2, infra, which states that no action of the House is 
        necessary to authorize the Speaker to certify a statement of 
        facts relating to a witness' contumacy received when Congress 
        is not in session. In such a case authority for certification 
        is 2 USC 194, rather than a resolution.
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        Mr. [Francis E.] Walter [of Pennsylvania]: Mr. Speaker, I offer 
    a privileged resolution (H. Res. 375) 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 Committee on Un-American Activities 
        of the House of Representatives as to the refusal of Edwin A. 
        Alexander to answer questions before a duly constituted 
        subcommittee of the Committee on Un-American Activities, 
        together with all of the facts in connection therewith, under 
        seal of the House of Representatives, to the United States 
        Attorney for the Northern District of Illinois, to the end that 
        the said Edwin A. Alexander may be proceeded against in the 
        manner and form provided by law. . . .

        Mr. Walter: Mr. Speaker, I move the previous question.
        The previous question was ordered.
        The Speaker: (11) The question is on the resolution.
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11. Sam Rayburn (Tex.).
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        The resolution was agreed to.
        A motion to reconsider was laid on the table.

During Adjournment

Sec. 22.2 The statute, 2 USC Sec. 194, provides that when Congress is 
    not in session, the Speaker shall certify to a U.S. Attorney 
    reports and statements of facts submitted by investigating 
    committees describing refusals of individuals to testify or produce 
    subpenaed materials; consequently, no action by the House is 
    necessary.

    On Nov. 14, 1944,(12) Speaker Sam Rayburn, of Texas, 
explained
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12. 90 Cong. Rec. 8163, 78th Cong. 2d Sess. See United States v Rumely, 
        197 F2d 166 (D.D.C. 1952), cert. granted, 344 U.S. 812, aff'd., 
        345 U.S. 41 (1953), in which defendant's conviction for 
        contempt of Congress was reversed on grounds that his first 
        amendment rights superseded the congressional investigative 
        power in this instance. See also United States v Kamp, 102 F 
        Supp 757 (D.D.C. 1952) [defendant found not guilty, as 
        government failed to prove default beyond a reasonable doubt].
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[[Page 2461]]

the procedure for certifying reports to the U.S. Attorney under 2 USC 
Sec. 194.(13)
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13. See Sec. 22.1, supra, for the procedure for authorizing a 
        certification of a report received when Congress is in session.
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                    Edward A. Rumely and Joseph P. Kamp

        The Speaker: The Chair desires to announce that during the past 
    recess of the Congress the Special Committee to Investigate 
    Campaign Expenditures authorized by House Resolution 551, Seventy-
    eighth Congress, reported to and filed with the Speaker statements 
    of facts concerning the willful and deliberate refusal of Edward A. 
    Rumely of the Committee for Constitutional Government and Joseph P. 
    Kamp of the Constitutional Educational League, Inc., to testify and 
    to produce the books, papers, records, and documents of their 
    respective organizations before the said Special Committee of the 
    House, and the Speaker, pursuant to the mandatory provisions of [2 
    USC Sec. 194] certified to the United States attorney, District of 
    Columbia, the statement of facts concerning the said Edward A. 
    Rumely on September 26, 1944, and the statement of facts concerning 
    the said Joseph P. Kamp on November 2, 1944.
        Mr. [John E.] Rankin [of Mississippi]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Rankin: Mr. Speaker, what is necessary to dispose of the 
    document which the Speaker has just read? Will it require a 
    resolution by the House or will it be referred to some committee?
        The Speaker: That is not necessary under the statute. It is 
    before the court now.
        Mr. Rankin: I understand, but in order to call for court action 
    it will be necessary, as I understand it, to have a resolution from 
    the House.
        The Speaker: The Chair thinks not, under the law.

Announcement of Certification

Sec. 22.3 The Speaker informs the House when he has, pursuant to 
    authority granted him by resolution, certified contempt cases to 
    U.S. Attorneys.

    On Feb. 7, 1936,(14) Speaker John W. McCormack, of Massa
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14. 112 Cong. Rec. 2290, 89th Cong. 2d Sess. See also, for example, 105 
        Cong. Rec. 18175, 86th Cong. 1st Sess., Sept. 4, 1959, for an 
        announcement by Speaker Sam Rayburn (Text), that he had, 
        pursuant to H. Res. 374 and 375, certified to the U.S. Attorney 
        for the District of Columbia and the Northern District of 
        Illinois reports regarding refusals of Martin Popper and Edwin 
        W. Alexander, respectively, to testify before the Committee on 
        Un-American Activities; 98 Cong. Rec. 886, 82d Cong. 2d Sess., 
        Feb. 6, 1952, for an announcement by Speaker Rayburn that he 
        had, pursuant to H. Res. 517, certified to the U.S. Attorney 
        for the District of Columbia a report regarding the refusal of 
        Sidney Buchman to appear before the Committee on Un-American 
        Activities; and 92 Cong. Rec. 10782, 79th Cong. 2d Sess., Aug. 
        2, 1946, for an announcement by Speaker Rayburn that he had, 
        pursuant to H. Res. 752 and 749, certified to the U.S. Attorney 
        for the District of Columbia reports regarding refusals of 
        Richard Morford and George Marshall to produce materials to the 
        Committee on Un-American Activities.
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[[Page 2462]]

chusetts, announced that he had certified to the U.S. Attorney for the 
District of Columbia contempt cases against alleged members of the Ku 
Klux Klan who had refused to testify.(15)
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15. When the House is in session the Speaker certifies reports of 
        contumacy of witnesses pursuant to authority of the House 
        granted by approval of a simple resolution. When the House is 
        not in session, however, the Speaker certifies a statement of 
        facts of the contumacy pursuant to authority granted by 2 USC 
        Sec. 194. See Sec. 22.2, supra, in which the Speaker indicated 
        that no action of the House was necessary to authorize him to 
        certify a statement of facts as to a witness' refusal to 
        testify or produce materials received while the Congress was 
        not in session.
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     Certifications to the U.S. Attorney for the District of Columbia--
                                Announcement

        The Speaker: The Chair desires to announce that, pursuant to 
    sundry resolutions of the House agreed to on February 2, 1966, he 
    did on February 3, 1966 make certifications to the U.S. attorney, 
    District of Columbia, as follows:
        House Resolution 699: The refusal of Robert M. Shelton to 
    produce certain pertinent papers before the Committee on Un-
    American Activities.
        House Resolution 700: The refusal of Calvin Fred Craig to 
    produce certain pertinent papers before the Committee on Un-
    American Activities.
        House Resolution 701: The refusal of James R. Jones to produce 
    certain pertinent papers before the Committee on Un-American 
    Activities.
        House Resolution 702: The refusal of Marshall R. Kornegay to 
    produce certain pertinent papers before the Committee on Un-
    American Activities.
        House Resolution 703: The refusal of Robert E. Scoggin to 
    produce certain pertinent papers before the Committee on Un-
    American Activities.
        House Resolution 704: The refusal of Robert Hudgins to produce 
    certain pertinent papers before the Committee on Un-American 
    Activities.
        House Resolution 705: The refusal of George Franklin Dorsett to 
    produce certain pertinent papers before the Committee on Un-
    American Activities.

[[Page 2463]]

Sec. 22.4 At the next meeting of the House the Speaker announces that 
    he has, during an adjournment to a day certain and pursuant to 
    statute, certified to the U.S. Attorney of the District of Columbia 
    statements of facts regarding the refusal of individuals to testify 
    and produce subpenaed materials before a special committee 
    authorized to make investigations.

    On Nov. 14, 1944,(16) the first day after an adjournment 
to a day certain, Speaker Sam Rayburn, of Texas, announced 
certification of reports and statements of facts to the U.S. Attorney 
for the District of Columbia.
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16. 90 Cong. Rec. 8163, 78th Cong. 2d Sess.
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                    Edward A. Rumely and Joseph P. Kamp

        The Speaker: The Chair desires to announce that during the past 
    recess of the Congress the Special Committee to Investigate 
    Campaign Expenditures authorized by House Resolution 551, Seventy-
    eighth Congress, reported to and filed with the Speaker statements 
    of facts concerning the willful and deliberate refusal of Edward A. 
    Rumely of the Committee for Constitutional Government and Joseph P. 
    Kamp of the Constitutional Educational League, Inc., to testify and 
    to produce the books, papers, records, and documents of their 
    respective organizations before the said Special Committee of the 
    House, and the Speaker, pursuant to the mandatory provisions of 
    Public Resolution No. 123, Seventy-fifth Congress, certified to the 
    United States attorney, District of Columbia, the statement of 
    facts concerning the said Edward A. Rumely on September 26, 1944, 
    and the statement of facts concerning the said Joseph P. Kamp on 
    November 2, 1944.

    Parliamentarian's Note: Public Law No. 123, to which the Speaker 
referred, has been codified as 2 USC Sec. 194.(17)
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17. See Sec. 22.2 supra, which states that no action of the House is 
        necessary in this situation.
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Sec. 22.5 On one occasion, where the Speaker, during a sine die 
    adjournment and pursuant to statute, had certified to a U.S. 
    Attorney a contempt case arising from a committee and reported to 
    him, he notified the House at its next meeting through its new 
    Speaker, who laid the communication before the House.

    On Jan. 5, 1955,(18) Speaker Sam Rayburn, of Texas, laid 
be
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18. 101 Cong. Rec. 11, 84th Cong. 1st Sess. See also United States v 
        Russell, 280 F2d 688 (D.C. Cir. 1960), rev'd, 369 U.S. 749 
        (1962) [defendant's conviction reversed, the court stating that 
        a grand jury indictment must state the question which was under 
        inquiry at time of defendant's default or refusal to answer].
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[[Page 2464]]

fore the House a communication from the Speaker of the 83d 
Congress.(19)
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19. See also 93 Cong. Rec. 39, 40, 80th Cong. 1st Sess., Jan. 3, 1947, 
        in which the Speaker of the 80th Congress, Joseph W. Martin, 
        Jr. (Mass.), laid before the House a letter from the Speaker of 
        the 79th Congress, Sam Rayburn (Tex.), relating to his 
        certification subsequent to the sine die adjournment of the 
        79th Congress and pursuant to 2 USC  194, to the U.S. Attorney 
        for the District of Columbia of a statement of facts relating 
        to the refusal of Benjamin J. Fields to produce materials 
        before the Select Committee to Investigate the Disposition of 
        Surplus Property. See also Fields v United States, 164 F2d 97 
        (D.C. Cir. 1947), cert. denied, 332 U.S. 851 [defendant's 
        conviction affirmed].
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     Matter of Lee Lorch, Robert M. Metcalf, and Norton Anthony Russell

        The Speaker laid before the House the following communication.
        The Clerk read the communication, as follows:
                                                  January 5, 1955.
        The Speaker,
        House of Representatives,
        United States, Washington, D.C.

            Dear Mr. Speaker: I desire to inform the House of 
        Representatives that subsequent to the sine die adjournment of 
        the 83d Congress the Committee on Un-American Activities 
        reported to and filed with me as Speaker a statement of facts 
        concerning the refusal of Lee Lorch, Robert M. Metcalf, and 
        Norton Anthony Russell to answer questions before the said 
        committee of the House, and I, pursuant to the mandatory 
        provisions of Public Resolution 123, 75th Congress, certified 
        to the United States attorney, southern district of Ohio, the 
        statement of facts concerning the said Lee Lorch and Robert M. 
        Metcalf on December 7, 1954, and certified to the United States 
        attorney, District of Columbia, the statement of facts 
        concerning the said Norton Anthony Russell on December 7, 1954.
              Respectfully,
                             Joseph W. Martin, Jr. (20)
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20. Mr. Martin was the Minority Leader of the 84th Congress.
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Sec. 22.6 At the opening meeting of the new Congress, the Speaker 
    announces to the House that he has during the adjournment sine die, 
    as Speaker of the prior Congress, certified to the U.S. Attorney 
    statements of facts regarding the refusal of individuals to 
    testify, before investigating committees.

    On Jan. 7, 1959,(1) the opening day of the 86th 
Congress, Speaker Sam Rayburn, of Texas, notified the House that he had 
certified statements of facts to U.S. Attorneys.(2)
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 1. 105 Cong. Rec. 17, 86th Cong. 1st Sess. See Wheedlin v United 
        States 283 F2d 535 (9th Cir. 1960), in which the defendant's 
        subsequent conviction for contempt of Congress was affirmed.
 2. See also 111 Cong. Rec. 25, 89th Cong. 1st Sess., Jan. 4, 1965, for 
        an announcement by Speaker John W. McCormack (Mass.), that he 
        had, on Dec. 11, 1964, during an adjournment sine die of the 
        88th Congress and pursuant to 2 USC  Sec. 194, certified to the 
        U.S. Attorney for the District of Columbia statements of facts 
        regarding refusals of Russell Nixon, Dagmar Wilson, and Donna 
        Allen to testify before the Committee on Un-American 
        Activities. The named defendant's convictions were reversed in 
        Wilson v United States, 369 F2d 198 (D.C. Cir. 1966). See 
        Sec. 22.8, infra, for discussion of the Wilson case.

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[[Page 2465]]

                    Committee on Un-American Activities

        The Speaker: The Chair desires to announce that subsequent to 
    the sine die adjournment of the 85th Congress, the Committee on Un-
    American Activities reported to and filed with the Speaker 
    statements of fact concerning the refusal of Donald Wheedlin and 
    Harvey O'Connor to appear in response to subpenas and to testify 
    before duly constituted subcommittees of the Committee on Un-
    American Activities of the House of Representatives, and that he 
    did, on January 1, 1959, pursuant to the mandatory provisions of 
    Public Resolution 123, 75th Congress, certify to the U.S. attorney, 
    southern district of California, the statement of facts concerning 
    the said Donald Wheedlin, and to the U.S. attorney, district of New 
    Jersey, the statement of facts concerning the said Harvey O'Connor.

Sec. 22.7 The Speaker informed the House when he had, pursuant to 
    authority granted him by resolution, certified purgation of 
    contempt to the U.S. Attorney.

    On July 26, 1954,(3) Speaker Joseph W. Martin, Jr., of 
Massachusetts, informed the House that he had certified to the U.S. 
Attorney for the District of Columbia the report purging Francis X. T. 
Crowley of contempt.
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 3. 100 Cong. Rec. 12023, 12024, 83d Cong. 2d Sess.
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                           Citations for Contempt

        The Speaker: The Chair desires to announce that pursuant to 
    sundry resolutions of the House he did, on Friday, July 23, 1954, 
    make certifications to the United States attorney, District of 
    Columbia, the United States attorney, southern district of 
    California, the United States attorney, eastern district of 
    Michigan, the United States attorney for the district of Oregon, 
    and the United States attorney, western district of Washington, as 
    follows:

              To the United States Attorney, District of Columbia
                     *      *      *      *      *

            House Resolution 681, concerning the action of Francis X. 
        T. Crowley in purging himself of contempt of the House of 
        Representatives.

Certification of Contempt as Discretionary

Sec. 22.8 A divided three-judge federal court has held that the statute 
    (2 USC Sec. 194) au

[[Page 2466]]

    thorizing the Speaker to certify to a U.S. Attorney any contempt 
    reported by a House committee between legislative sessions is not 
    mandatory, but requires the Speaker to renew the contempt charge 
    and exercise his discretion with respect thereto.

    In Wilson v United States, (4) the court reviewed 
convictions of Russell Nixon, Dagmar Wilson, and Donna Allen for 
contempt of Congress based on refusals to answer questions at an 
executive session conducted by a subcommittee of the House Committee on 
Un-American Activities. The court reversed the convictions, holding 
that the alleged contempts had been improperly certified to the U.S. 
Attorney under the following statute: (5)
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 4. 369 F2d 198 (D.C. Cir. 1966).
 5. 2 USC Sec. 194.
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            Whenever a witness summoned as mentioned in section 192 . . 
        . fails . . . or . . . refuses to answer any question pertinent 
        to the subject under inquiry before either House . . . or any 
        committee or subcommittee of either House of Congress [and] 
        when Congress is not in session, a statement of fact 
        constituting such failure is reported to . . . the Speaker of 
        the House, it shall be the duty of the . . . Speaker . . . to 
        certify, and he shall so certify, the statement of facts . . . 
        to the appropriate United States attorney, whose duty it shall 
        be to bring the matter before the grand jury for its action.

    In the view of the court, the Speaker had erred in construing the 
statute to be mandatory and therefore to prohibit any inquiry by him; 
accordingly, his ``automatic certification'' was held to be invalid. In 
reaching this conclusion, the court stressed the legislative history of 
the provision and the established practice of the House, both of which, 
in the court's view, indicated a congressional intention that reports 
of contempt of Congress be reviewed on their merits by the House 
involved if in session, or by the Speaker when Congress is not in 
session.
    A dissenting opinion, relying in part on the principle that 
statutory language is to be interpreted wherever possible in its 
ordinary, everyday sense, stressed the unambiguous language of the 
statute itself. The dissent further emphasized the importance of 
committee reports in studying the legislative history of provisions, 
and indicated that the reports on the provisions regarding the 
Speaker's duty to certify contempt charges between sessions revealed an 
intent to facilitate prompt action in cases of contempt reported at 
such times. The practice of Congress when in session was not, in the 
dissenting view, considered to be

[[Page 2467]]

instructive in determining the duty of the Speaker between sessions.
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