[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2275-2278]
 
                               CHAPTER 15
 
                      Investigations and Inquiries


[[Page 2275]]



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    Commentary and editing by Thomas J. Nicola, J.D.
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A. Basis of Authority to Investigate; Creating Committees

    Sec. 1. In General; Subjects of Authorizing Resolutions

B. Inquiries and the Executive Branch

    Sec. 2. Resolutions of Inquiry and Responses
    Sec. 3. Executive Branch Refusals to Provide Information
    Sec. 4. Litigation to Enforce a Subpena; Senate Select Committee v 
            Nixon
    Sec. 5. Legislation to Obtain Information

C. Procedure; Hearings

    Sec. 6. Limitations on Authority to Investigate--Pertinence of 
            Inquiry
    Sec. 7. --Intent of Witness
    Sec. 8. --Procedural Regularity of Hearings
    Sec. 9. Rights of Witnesses Under the Constitution--Fifth Amendment
   Sec. 10. --First Amendment
   Sec. 11. --Fourth Amendment
   Sec. 12. --Sixth Amendment
   Sec. 13. Rights of Witnesses Under House Rules
   Sec. 14. --Right to Counsel
   Sec. 15. Effect of Derogatory Information
   Sec. 16. Calling Witnesses; Subpenas

[[Page 2276]]

D. Authority in Cases of Contempt

   Sec. 17. In General
   Sec. 18. Time for Consideration
   Sec. 19. Matters Decided by House
   Sec. 20. Particular Conduct as Contumacious
   Sec. 21. Purging Contempt
   Sec. 22. Certification to U.S. Attorney

  
                         DESCHLER'S PRECEDENTS


                          INDEX TO PRECEDENTS

Authorizing resolutions, subjects of
    agencies, specific, Sec. Sec. 1.9-1.12
    airplane crashes, Sec. 1.37
    business, Sec. Sec. 1.19, 1.20
    chemicals in food production, Sec. 1.36
    congressional operations and practices, Sec. Sec. 1.2-1.5
    crime, Sec. 1.41
    economics, Sec. Sec. 1.13-1.18
    energy, Sec. 1.42
    executive branch, structure and operation of, Sec. Sec. 1.6-1.8
    migration of destitute citizens, Sec. 1.38
    military operations, domestic, Sec. 1.23
    military operations, foreign, Sec. Sec. 1.261.28
    military preparedness, Sec. Sec. 1.24, 1.25
    offensive literature, Sec. 1.40
    pensions, Sec. 1.39
    privacy, human values. and democratic institutions, Sec. 1.1
    scientific activities, Sec. Sec. 1.34, 1.35
    Senate precedents, Sec. Sec. 1.44-1.46
    sit-down strikes, Sec. 1.43
    taxation, Sec. Sec. 1.21, 1.22
    un-American activities, Sec. Sec. 1.32, 1.33
    veterans' benefits, Sec. Sec. 1.29-1.31
Code of Fair Procedures, Sec. Sec. 13.1-13.10
Contempt, certification to U.S. Attorney of
    adjournment, during, Sec. Sec. 22.2-22.6
    announcement of certification, Sec. Sec. 22.322.7
    congressional session, during, Sec. 22.1
    discretionary, certification as, Sec. 22.8
Contempt, conduct amounting to
    refusal to answer questions, Sec. Sec. 20.5, 20.6
    refusal to answer questions and departure without leave, 
        Sec. Sec. 20.7, 20.8
    refusal to appear, Sec. Sec. 20.1, 20.2
    refusal to be sworn, Sec. Sec. 20.3, 20.4
    refusal to produce materials, Sec. Sec. 20.9, 20.10
    Senate precedents, Sec. Sec. 20.11-20.14
Contempt, divisibility of resolution relating to, Sec. 17.3
Contempt, matters decided by House with regard to
    authority of committee, Sec. 19.2
    content of report, Sec. 19.1
    subpena, effect of absence of, Sec. 19.4
    testimony, necessity of reading, Sec. 19.3
Contempt, purging a contumacious witness of
    certification of purgation, Sec. Sec. 21.3, 22.7
    report, Sec. 21.1
    resolution, Sec. 21.2

[[Page 2277]]

    U.S. Attorney's response, Sec. Sec. 21.4, 21.5
Contempt, recommittal of resolution relating to, Sec. Sec. 17.1, 17.2
Contempt, time for consideration of
    Calendar Wednesday, Sec. 18.6
    reports, Sec. Sec. 18.1, 18.2
    resolutions, Sec. Sec. 18.4, 18.5
Counsel
    participation, degree of, by, Sec. Sec. 14.314.5
    right to, Sec. Sec. 14.1, 14.2
Deletion of names of persons not subpenaed, Sec. 17.4
Derogatory information, effect of
    generally, Sec. 15.1
    consequence of committee determination, Sec. 15.6
    determination of derogatory nature of information, Sec. 15.4
    prerequisite for committee determination, Sec. 15.3
Executive branch refusals to provide information to Congress
    former executive branch officials, refusal by, Sec. 3.1
Executive branch, structure and operation of
    investigations of, resolutions authorizing, Sec. Sec. 1.6-1.8
Executive session
    determination by committee, Sec. Sec. 15.4, 15.5
    receiving testimony in, Sec. 15.2
Habeas corpus to compel attendance of incarcerated witness, Sec. 16.1
Inquiry, resolutions of
    bombardment of Cambodia and Laos, Sec. 2.11
    bombardment of North Vietnam, Sec. Sec. 2.6-2.8
    busing, Sec. 2.24
    Cambodia, bombing of, Sec. 2.11
    domestic energy sources, Sec. 2.23
    evidence about Vice President, Sec. 2.18
    evidence from Watergate prosecutor, Sec. 2.17
    fish exports, Sec. 2.21
    foreign sales of short supply goods, Sec. 2.22
    Formosa, policy on, Sec. 2.16
    kidnapping, Sec. 2.19
    information furnished to committee, Sec. 2.26
    Laotian operations, Sec. Sec. 2.9-2.11
    Mexican-American relations, Sec. 2.14
    military aid to forward-defense and
    Mediterranean nations, Sec. 2.12
    Phoenix Program, Sec. 2.5
    postal temporaries, Sec. 2.25
    Presidential agreements with British
    Prime Minister, Sec. 2.13
    removal of German industrial plants, Sec. 2.15
    security files, Sec. 2.20
    South Vietnam, military involvement in, Sec. Sec. 2.1, 2.2
    South Vietnamese presidential election, Sec. Sec. 2.3, 2.4
Legislation to obtain information, Sec. Sec. 5.15.3
Select committee, form of resolution to establish, Sec. 1.1
Subpenas
    contempt, subpena as prerequisite to, Sec. Sec. 16.2, 17.4, 19.4
    derogatory information, subpenas requested by person who is 
        affected by, Sec. 15.1
    right of subpenaed witness not to be photographed, Sec. 13.11
Witnesses, rights of, under House rules
    in general, Sec. Sec. 13.1, 13.2
    announcement of subject of investigation, Sec. 13.4

[[Page 2278]]

    committee rules, Sec. 13.7
    media coverage, Sec. 13.11
    punishment of breaches of order, Sec. 13.5
    quorum, Sec. 13.3
    release of secret information, Sec. 13.9
    responsibility to protect rights, Sec. 13.12
    submission of written statements, Sec. 13.10
    subpenas, requests for, Sec. Sec. 13.6, 15.1
    transcripts, Sec. 13.8

[[Page 2279]]



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
       A. BASIS OF AUTHORITY TO INVESTIGATE; CREATING COMMITTEES
 
Sec. 1. In General; Subjects of Authorizing Resolutions



    Although the congressional power of investigation is not explicitly 
granted by the Constitution, it has been exercised by the House since 
1792.(1) It is well established that the power to 
investigate is implied from the power to legislate granted in article 
I, section 1 of the Constitution. Thus, the Supreme Court has stated 
that the power of inquiry, with process to enforce it, is an essential 
and appropriate auxiliary to the legislative function.(2) 
The Court has further stated:
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 1. The House in that year rejected a resolution requesting the 
        President to investigate the defeat of General St. Clair's army 
        and instead asserted its own right to investigate by requesting 
        the President to cause proper executive officers to deliver to 
        the House documents pertinent to the matter. See 3 Hinds' 
        Precedents Sec. 1725.
            For earlier coverage of the subject matter of this chapter 
        generally, see, for example, 3 Hinds' Precedents 
        Sec. Sec. 1666-1724 (punishment of witnesses for contempt); 
        Sec. Sec. 1725-1826 (powers of investigation and conduct of 
        investigations); Sec. Sec. 1856-1910 (inquiries of the 
        executive); 6 Cannon's Precedents Sec. Sec. 335-353 (punishment 
        of witnesses for contempt); Sec. Sec. 354-393 (power of 
        investigation and conduct of investigations); and 
        Sec. Sec. 404-437 (inquiries of the executive).
            See also Leading Cases on Congressional Investigatory Power 
        (Committee Print, Joint Committee on Congressional Operations, 
        94th Cong. 2d Sess.).
 2. McGrain v Daugherty, 273 U.S. 135, 174.
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        The power of the Congress to conduct investigations is inherent 
    in the legislative process. That power is broad. It encompasses 
    inquiries concerning the administration of existing laws as well as 
    proposed or possibly needed statutes. It includes surveys of 
    defects in our social, economic or political system for the purpose 
    of enabling the Congress to remedy them. It comprehends probes into 
    departments of the Federal Government to expose corruption, 
    inefficiency or waste.(3)
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 3. Watkins v United States, 354 U.S. 178, 187 (1957).
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    The scope of the power of inquiry is as broad as the power to enact 
and appropriate under the Constitution.(4) Subjects of inves

[[Page 2280]]

tigation that have specifically been approved by the courts include the 
existence of subversive activities in education,(5) labor 
and industry,(6) the extent of corruption in labor 
unions,(7) and the denial of civil rights by particular 
organizations.(8)
    Although the power of investigation is broad, it is not unlimited. 
It may be exercised only ``in aid of the legislative function.'' 
(9) Accordingly, it has been stated that, generally, there 
is no congressional power ``to expose for the sake of exposure,'' 
(10) and that, in any event, Congress cannot inquire into 
matters which are within the exclusive province of one of the other 
branches of government,(11) or which are reserved

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 4. Barenblatt v United States, 360 U.S. 109, 111 (1959). See also The 
        Constitution of the United States of America, Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 80 
        (1972).
 5. Barenblatt v United States, 360 U.S. 109 (1959); Deutch v United 
        States, 367 U.S. 456 (1961).
 6. Watkins v United States, 354 U.S. 178 (1957); Flaxer v United 
        States, 358 U.S. 147 (1958); Wilkinson v United States, 365 
        U.S. 399 (1961).
 7. Hutcheson v United States, 369 U.S. 599 (1962). See also The 
        Constitution of the United States of America, Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., pp. 84, 
        85 (1972).
 8. Shelton v United States, 404 F2d 1292 (D.C. Cir. 1968), cert. 
        denied, 393 U.S. 1024 (1969).
 9. Kilbourn v Thompson, 103 U.S. 168 (1881). Beginning with In re 
        Chapman, 166 U.S. 661 (1897) and McGrain v Daugherty, 273 U.S. 
        135 (1927) and until prior to United States v Rumely, 345 U.S. 
        543 (1952), courts presumed existence of a legislative purpose. 
        After that period, as investigations began to arouse criticism 
        for infringing individual liberties, however, courts began to 
        construe narrowly the resolutions describing authority of 
        committees (see Rumely) and went so far as to impose a specific 
        burden on the government in contempt prosecutions to show 
        affirmatively the source of authority for each investigation. 
        See United States v Lamont, 236 F2d 312 (2d Cir. 1956) and 
        Moreland, Allen B., Congressional Investigations and Private 
        Persons, 40 So. Cal. L. Rev. 189, 230-236 (1967) for a 
        discussion of legislative purpose. See also Sec. 6, infra, for 
        discussion of a closely related topic, the pertinence of the 
        inquiry.
10. Watkins v United States, 354 U.S. 178, 200 (1957). In making this 
        statement, however, Chief Justice Warren pointed out that this 
        view did not apply to Congress' function to inquire into and 
        publicize corruption, maladministration or inefficiency in 
        agencies of government. Id., 211 n. 33.
11. Barenblatt v United States, 360 U.S. 109, 111, 112 (1959). See also 
        Sec. 3, infra, for a discussion of executive branch refusals to 
        provide information.
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[[Page 2281]]

to the states.(12) In imposing such limitations upon the 
power to investigate, the courts have, as in other areas, traditionally 
refused to inquire into the motives of legislators.(13)

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12. See United States v DiCarlo, 102 F Supp 597 (N.D. Ohio 1952) for 
        rejection of an allegation that the Senate encroached state 
        powers by creating a special committee to investigate organized 
        crime in interstate commerce.
13. Tenney v Brandhove, 341 U.S. 367 (1951) and United States v 
        O'Brien, 391 U.S. 367 (1968).
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    A further requirement for the validity of an investigation is that 
it must have been expressly or impliedly authorized in accordance with 
congressional procedures. As an example, the House, may authorize a 
select or standing committee to investigate a particular subject, or a 
committee may authorize a subcommittee to investigate a 
subject.(14) In the usual practice, resolutions authorizing 
the Speaker to appoint Members to select or special committees to 
investigate designated subjects are assigned to and reported by the 
Committee on Rules,(15) which calls them up as 
privileged.(16) In addition, congressional investigations 
may be initiated pursuant to statute,(17) motion to 
recommit,(18) joint (19) or

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14. See Sec. 1.1, infra, for the full text of an authorizing resolution 
        and House Rules and Manual Sec. 976 (1973), for the form of an 
        authorizing resolution. Mr. Justice Frankfurter characterized 
        such a resolution, one to investigate lobbying activities (see 
        Sec. 1.5, infra, for a discussion of this resolution), as the 
        committee's ``controlling charter'' which delimits its ``right 
        to exact testimony.'' United States v Rumely, 345 U.S. 41, 44 
        (1953).
            Parliamentarian's Note: Recent changes in procedures 
        relating to authorization of standing committees will be 
        discussed in supplements to this edition as they appear.
15. House Rules and Manual Sec. 717 (1973).
16. See Rule XI clauses 22, 23, and 24, House Rules and Manual 
        Sec. Sec. 726, 729, and 732 in the edition published at the 
        commencement of 1973; at the end of the 93d Congress first 
        session these clauses were numbered 23, 24, and 25, 
        respectively.
17. See, for example, 26 USC Sec. Sec. 8001, 8022, which establish the 
        Joint Committee on Internal Revenue Taxation, and confer 
        investigatory duties, respectively.
18. See, for example, 112 Cong. Rec. 1762, 1763, 89th Cong. 2d Sess., 
        Feb. 2, 1966, for a motion to recommit a resolution directing 
        the Speaker to certify to a U.S. Attorney a contempt citation 
        against Robert M. Shelton allegedly of the Ku Klux Klan, to a 
        select committee of seven members appointed by the Speaker to 
        examine the sufficiency of these citations in light of relevant 
        judicial decisions.
19. See, for example, 114 Cong. Rec. 21012-31, 90th Cong. 2d Sess., 
        July 12, 1968, for House approval of H.J. Res. 1, establishing 
        a joint committee to investigate crime. The final action in the 
        Senate was referral to the Committee on the Judiciary.
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[[Page 2282]]

concurrent resolution,(20) or rule of the 
House.(1)

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20. See, for example, 91 Cong. Rec. 346-350, 79th Cong. 1st Sess., Jan. 
        18, 1945, for House approval of H. Con. Res. 18, establishing 
        the Joint Committee on the Organization of the Congress. This 
        measure was amended by the Senate at 91 Cong. Rec. 1010, 79th 
        Cong. 1st Sess., Feb. 12, 1945; the House concurred in the 
        Senate amendments at 91 Cong. Rec. 1272-74, 79th Cong. 1st 
        Sess., Feb. 19, 1945.
 1. See Rule XI clauses 2(b), 11(b), and 19 (c), House Rules and Manual 
        Sec. Sec. 679, 703A, and 720 (1973), authorizing the Committees 
        on Appropriations, Internal Security, and Standards of Official 
        Conduct, respectively, to conduct investigations and studies.
            Note: Recent changes in Rule XI and in the procedure for 
        authorizing investigations by rule will be discussed in 
        supplements to this edition as they appear. Meanwhile, see 
        Rules X and XI, House Rules and Manual (1975 and 1977) for 
        discussion of changes in investigating, oversight, and subpena 
        authorities of standing committees since the 93d Congress.
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    The determination of whether a particular investigation is within 
the scope of the congressional power, or whether procedural 
requirements of the investigation have been met, may be important when 
such questions as the alleged contempt of witnesses arise. Thus, courts 
have held that persons may not be convicted of contumacy arising out of 
an investigation which the House lacked authority to conduct. Subjects 
that have, in this context, been held not to be proper matters for 
legislative action have included the withdrawal of congressional 
consent to establish a bi-state compact, the port of New York 
authority.(2) Similarly, courts have refused to convict a 
witness for contumacy arising out of a subcommittee investigation of 
Communist activities in the field of labor, where such investigation 
had not been approved by a majority of the parent Committee on 
UnAmerican Activities as was required by the committee 
rule.(3) In another instance, the authorizing resolution was 
construed not to sanction the investigation of ac

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 2. See Tobin v United States, 306 F2d 270 (D.C. cir. 1962); cert. 
        denied, 371 U.S. 902 (1962) which held that the express 
        reservation of Congress' right ``to alter, amend or repeal'' 
        its initial consent granted in 1921 could not be implied from 
        art. I, Sec. 10 clause 3 of the Constitution which provides 
        that no state shall without the consent of Congress enter into 
        any agreement or compact with another state.
 3. Gojack v United States, 384 U.S. 702 (1966).
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[[Page 2283]]

tivities of a lobbyist that were related to his efforts to influence 
public opinion by the distribution of literature, and that were 
unrelated to any representations made by him to Congress.(4)

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 4. United States v Rumely, 345 U.S. 543 (1952). See Sec. 1.5, infra, 
        for the resolution establishing a select committee to 
        investigate lobbying activities.
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    Discussed in ensuing sections are particular subjects on which 
Congress may legislate and appropriate and which are therefore proper 
matters for investigation; (5) inquiries directed to the 
executive branch; (6) procedures for investigative hearings; 
(7) and things incidental to the authority to investigate, 
such as the power to punish witnesses for contempt.(8)
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 5. See Sec. Sec. 1.1-1.46, infra.
 6. See Sec. Sec. 2-5, infra.
 7. See Sec. Sec. 6-16, infra.
 8. See Sec. Sec. 17-22, infra.
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    Principles affecting the investigation of certain specific subjects 
have been treated in other chapters. These subjects include 
impeachment; (9) election contests; (10) conduct 
of Members; (11) and qualification and disqualification of 
Members.(12) In addition, the broad subject of committee 
structure and procedures is treated elsewhere.(13)
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 9. See Ch. 14, supra.
10. See Ch. 9, supra.
11. See Ch. 12, supra.
12. See Ch. 7, supra.
13. See Ch. 17. infra.
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                         Collateral References
Barth, Alan, Government by Investigation, Viking Press, New York 
    (1955).
The Constitution of the United States of America, Analysis and 
    Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., pp. 79-81, 
    83-86 (1972).
De Grazia, Alfred, ed., Congress: The First Branch of Government, 
    American Enterprise Institute for Public Policy Research, 
    Washington, D.C. (1966).
Dimock, Marshall Edward, Congressional Investigating Committees, AMS 
    Press, New York, 1971 (reprint of a 1928 work).
Frantz, Laurent, Wilkinson, Braden, and Deutch: The Legislative 
    Investigation Case, 21 Law in Transition (continuation of National 
    Lawyer's Guild Rev.) 219 (1962).
Landis, Constitutional Limitations on the Congressional Power of 
    Investigation, 40 Harv. L. Rev. 153 (1926).
Levi, Edward H., et al., Congressional Investigations, A Symposium, 18 
    U. of Chic. L. Rev. 421 (1951).
McGreary, M. Nelson, The Development of Congressional Investigative 
    Power, Octagon Books, Inc. (1966).
McKay, R. B., Congressional Investigations and the Supreme Court, 51 
    Cal. L. Rev. 276 (1963).
Moreland, Allen B., Congressional Investigations and Private Persons, 
    40 So. Cal. L. Rev. 189 (1967).
Newman, Frank C., Supreme Court, Congressional Investigations and 
    Influence

[[Page 2284]]

    Peddling, N. Y. U. L. Rev. 796 June (1958).
Senate Committee on the Judiciary, Congressional Power of 
    Investigation, S. Doc. No. 99, 82d Cong. 2d Sess. (1954).
Shapiro, M., Judicial Review: Political Reality and Legislative 
    Purpose: The Supreme Court's Supervision of Congressional 
    Investigations, 15 Vand. L. Rev. 535 (1962).
Taylor, Telford, Grand Inquest: The Story of Congressional 
    Investigations, Simon and Schuster, New York (1955).
Warren, W. C., Congressional Investigations: Some Observations, 21 
    Food, Drug, Cosm. L. Jour. 40 
    (1966)                          -------------------

Privacy, Human Values, and Democratic Institutions

Sec. 1.1 Form of resolution establishing select committee. The House 
    rejected a resolution establishing a select committee to 
    investigate privacy, human values, and democratic institutions.

    On Feb. 8, 1972,(14) the House rejected a resolution 
(called up as privileged by direction of the Committee on Rules) 
establishing a select committee. The proceedings were as follows:
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14. 118 Cong. Rec. 3181-3200, 92d Cong. 2d Sess. The resolution was 
        reported on May 19, 1971 (H. Rept. No. 218).
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        Mr. [Ray J.] Madden [of Indiana]: Mr. Speaker, by direction of 
    the Committee on Rules, I call up House Resolution 164 and ask for 
    its immediate consideration.
        The Clerk read the resolution as follows:

                                  H. Res. 164

            Whereas the development of technology is advancing at an 
        unparalleled rate of speed and is rapidly coming to affect 
        every level of American life; and
            Whereas the operations of industry and Government are 
        coming more and more to rely on highly sophisticated computer 
        technology to assist them in their operations; and
            Whereas the full significance and the effects of technology 
        on society and on the operations of industry and Government are 
        largely unknown; and
            Whereas computers and other technological innovations aid 
        in the gathering and centralization of massive information of 
        all kinds of individuals and, consequently, call into question 
        the effect of technology on the right of privacy; and
            Whereas Congress needs a committee ready and able to 
        evaluate the effects of technology on the operations of 
        Government, on the democratic institutions and processes basic 
        to the United States, and on the basic human and civil rights 
        of our citizens: Now, therefore, be it
            Resolved, That there is hereby created a select committee 
        to be known as the Select Committee on Privacy, Human Values, 
        and Democratic Institutions to be composed of nine Members of 
        the House of Representatives to be appointed by the Speaker, 
        one of whom he shall designate as chairman. Any vacancy 
        occurring in the membership of the committee shall be filled in 
        the same manner in which the original appointment was made.
            The committee is authorized and directed to conduct a full 
        and com

[[Page 2285]]

        plete investigation and study of the development and 
        proliferation of technology in American society, including the 
        role and effectiveness of computer technology in the operations 
        of industry and Government, the consequences of using computers 
        to solve social questions which traditionally have been 
        addressed without the assistance of computers and other 
        machines, and the effects of technology and machines on 
        democratic institutions and processes. The committee shall also 
        study the use of computers and other technical instruments in 
        gathering and centralizing information on individuals and the 
        effect of such activity on the human and civil rights.
            For the purpose of carrying out this resolution the 
        committee, or any subcommittee thereof authorized by the 
        committee to hold hearings, is authorized to sit and act during 
        the present Congress at such times and places and within the 
        United States, including any Commonwealth or possession 
        thereof, whether the House is in session, has recessed, or has 
        adjourned, to hold such hearings, and to require, by subpoena 
        or otherwise, the attendance and testimony of such witnesses 
        and the production of such books, records, correspondence, 
        memorandums, papers, and documents, as it deems necessary; 
        except that neither the committee nor any subcommittee thereof 
        may sit while the House is meeting unless special leave to sit 
        shall have been obtained from the House. Subpoenas may be 
        issued under the signature of the chairman of the committee or 
        any member of the committee designated by him, and may be 
        served by any person designated by such chairman or member.
            The committee shall report to the House as soon as 
        practicable during the present Congress the results of its 
        investigation and study, together with such recommendations as 
        it deems advisable. Any such report which is made when the 
        House is not in session shall be filed with the Clerk of the 
        House.

        With the following committee amendment:

            On page 3, line 5: Strike the words ``act during the'' and 
        insert ``act, subject to clause 31 of Rule XI of the Rules of 
        the House of Representatives, during the''.

        The committee amendment was agreed to. . . .
        Mr. Madden: Mr. Speaker, I move the previous question on the 
    resolution.
        The previous question was ordered.
        The Speaker: (15) The question is on the resolution.
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15. Carl Albert (Okla.).
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        Mr. [Fletcher] Thompson of Georgia: Mr. Speaker, on that I 
    demand the yeas and nays.
        The yeas and nays were ordered. . . .
        The question was taken; and there were--yeas 168, nays 216, not 
    voting 47 . . . .
        So the resolution was rejected.

Congressional Operations and Practices

Sec. 1.2 The House established a select committee to investigate House 
    Rules X and XI, which relate to the structure, jurisdiction, and 
    procedure of committees.

    On Jan. 31, 1973,(16)  the House by a vote of yeas 282 
to nays 91

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16. 119 Cong. Rec. 2812-16, 93d Cong. 1st Sess. The resolution was 
        reported on Jan. 30, 1973 (H. Rept. No. 2).
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[[Page 2286]]

agreed to House Resolution 132, reported from the Committee on Rules, 
creating a select committee to study the operation and implementation 
of Rules X and XI, focusing on committee structure, number and optimum 
size of committees, their jurisdiction, number of subcommittees, 
committee rules and procedures, media coverage of meetings, staffing, 
space, equipment, and other committee facilities.

    Parliamentarian's Note: Consideration of House Resolution 132 was 
provided for by the adoption of House Resolution 176 [119 Cong. Rec. 
2804, 93d Cong. 1st Sess.], called up by direction of the Committee on 
Rules. Since House Resolution 132 would not have been privileged 
(because it contained provisions affecting contingent funds), House 
Resolution 176 provided for the immediate consideration of House 
Resolution 132, debate to be controlled by the Committee on Rules and 
the previous question considered as ordered.

Sec. 1.3 The House agreed to a resolution creating a special committee 
    to investigate and report on campaign expenditures and practices by 
    candidates for the House.

    On Aug. 4, 1970,(17)  the House by voice vote approved 
House Resolution 1062, authorizing the Speaker to appoint a special 
committee to investigate and report to the House on candidate 
expenditures and donations of services and funds received as well as 
violations of election laws. The resolution was called up by Mr. Thomas 
P. O'Neill, Jr., of Massachusetts, who referred to it as authorizing 
the biennial special committee to investigate campaign expenditure.'' 
(18) 
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17. 116 Cong. Rec. 27125, 27126, 91st Cong. 2d Sess. The resolution was 
        reported on June 11, 1970 (H. Rept. No. 1187) from the 
        Committee on Rules.
18. See also 112 Cong. Rec. 19079-81, 89th Cong. 2d Sess., Aug. 11, 
        1966; and 90 Cong. Rec. 6392, 6393-98, 78th Cong. 2d Sess., 
        June 21, 1944, for other examples of voice vote approvals of H. 
        Res. 929 and 551, respectively, creating special committees to 
        investigate campaign expenditures.
            Parliamentarian's Note: Since the 93d Congress, the special 
        committee has not been reconstituted. On Aug. 21, 1974, the 
        House agreed to H. Res. 737, a privileged resolution reported 
        from the Committee on Rules, authorizing the Committee on House 
        Administration to conduct investigations within its 
        jurisdiction (including elections of Members) and authorizing 
        that committee to issue subpenas. 120 Cong. Rec. 29653, 29654, 
        93d Cong. 2d Sess.

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

[[Page 2287]]

Sec. 1.4 The House established a select committee to study and 
    investigate the welfare and education of congressional pages.

    On Sept. 30, 1964,(19)  the House by voice vote approved 
House Resolution 847 (called up as privileged by direction of the 
Committee on Rules), to create a select committee to investigate the 
welfare and education of congressional pages including dining, 
recreational, educational, and physical training facilities and 
opportunities as well as rates of pay, hours of work, and other working 
conditions.
---------------------------------------------------------------------------
19. 110 Cong. Rec. 23187, 23188, 88th Cong. 2d Sess. The resolution was 
        reported on Sept. 16, 1964 (H. Rept. No. 1887).
---------------------------------------------------------------------------

Sec.  1.5 The House established a select committee to investigate 
    lobbying activities.

    On Aug. 12, 1949,(20) , the House by voice vote approved 
House Resolution 298 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of seven members to 
investigate all lobbying activities and all activities of federal 
agencies intended to influence, encourage, promote, or retard 
legislation.
---------------------------------------------------------------------------
20. 95 Cong. Rec. 11385-89, 81st Cong. 1st Sess. The resolution was 
        reported on Aug. 3, 1949 (H. Rept. No. 1185).
---------------------------------------------------------------------------

Structure and Operation of the Executive Branch

Sec.  1.6 The House established a select committee to study executive 
    agencies.

    On Apr. 29, 1936,(1)  the House by a roll call vote of 
yeas 269 to nays 44 approved House Resolution 460 (called up as 
privileged by direction of the Committee on Rules), authorizing the 
Speaker to appoint a select committee of five members to study 
activities of executive departments, bureaus, boards, commissions, and 
agencies to determine whether any of these agencies should be abolished 
or coordinated with other agencies in the interest of simplification, 
efficiency, and economy.
---------------------------------------------------------------------------
 1. 80 Cong. Rec. 6375, 6376, 6385, 6386, 74th Cong. 2d Sess. The 
        resolution was reported on Apr. 28, 1936 (H. Rept. No. 2504).
---------------------------------------------------------------------------

    This resolution, called up by Mr. John J. O'Connor, of New York, 
had been requested by President Franklin D. Roosevelt, in a Mar. 20, 
1936, letter to Speaker Joseph W. Byrns, of Tennessee, seeking 
cooperation of the House in incorporating agencies created during the 
depression into the regular executive organization.(2) 
---------------------------------------------------------------------------
 2. See 80 Cong. Rec. 6376, 74th Cong. 2d Sess., for the text of this 
        letter.

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

[[Page 2288]]

Sec. 1.7 The House established a special committee to investigate acts 
    of executive agencies.

    On Feb. 11, 1943,(3)  the House by a roll call vote of 
yeas 294 to nays 50, approved House Resolution 102 (called up as 
privileged by direction of the Committee on Rules), establishing a 
special committee of five members to investigate any action, rule, 
procedure, regulation, order, or directive taken or promulgated by any 
department or independent agency of the federal government where 
complaint is made that any action or rule (1) is beyond the scope of 
the department or agency, (2) invades constitutional rights, 
privileges, or immunities of citizens, or (3) inflicts penalties for 
noncompliance without an opportunity to present a 
defense.(4) 
---------------------------------------------------------------------------
 3. 89 Cong Rec. 872, 883, 884, 78th Cong. 1st Sess. The resolution was 
        reported on Feb. 8, 1943 (H. Rept. No. 104).
 4. Authority to continue this subcommittee was granted by a roll call 
        vote of yeas 254 to nays 55 on H. Res. 88, on Jan. 18, 1945. 91 
        Cong. Rec. 344-346, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 1.8 The House rejected a resolution establishing a select 
    committee to investigate the transfer of certain government 
    agencies and bureaus from the District of Columbia.

    On July 15, 1941,(5)  the House by a vote of yeas 72 to 
nays 204, rejected House Resolution 257 (called up as privileged by 
direction of the Committee on Rules), creating a select committee of 
five members to investigate the feasibility and desirability of 
transfer-ring any government agencies and bureaus to locations outside 
the District of Columbia and to investigate the location, extent, and 
cost of office space and other facilities rented by the various federal 
departments, bureaus, and agencies within and without the District of 
Columbia.
---------------------------------------------------------------------------
 5. 87 Cong. Rec. 6073, 6082, 6083, 77th Cong. 1st Sess. The resolution 
        was reported on July 10, 1941 (H. Rept. No. 932).
---------------------------------------------------------------------------

Specific Agencies

Sec. 1.9 The House approved a resolution establishing a select 
    committee to investigate the organization, personnel, and 
    activities of the Federal Communications Commission.

    On Jan. 19, 1943,(6)  the House by voice vote approved 
House Res

[[Page 2289]]

olution 21 (called up as privileged by direction of the Committee on 
Rules), establishing a select committee of five members to determine 
whether the Federal Communications Commission acted in accordance with 
law and the public interest in its organization, selection of 
personnel, and conduct of its activities.
---------------------------------------------------------------------------
 6. 89 Cong. Rec. 233, 235, 78th Cong. 1st Sess. The resolution was 
        reported on Jan. 18, 1943 (H. Rept. No. 8).
---------------------------------------------------------------------------

Sec. 1.10 The House established a select committee to investigate 
    activities of the Farm Security Administration.

    On Mar. 18, 1943,(7)  the House by voice vote approved 
House Resolution 119 (called up as privileged by direction of the 
Committee on Rules), creating a select committee to investigate 
activities of the Farm Security Administration to determine whether 
congressional policies were being followed.(8) 
---------------------------------------------------------------------------
 7. 89 Cong. Rec. 2194, 78th Cong. 1st Sess. The resolution was 
        reported on Mar. 11, 1945 (H. Rept. No. 241).
 8. See 89 Cong. Rec. 1859, 78th Cong. 1st Sess., for text of the 
        resolution.
---------------------------------------------------------------------------

Sec. 1.11 The House established a select committee to investigate the 
    financial position of the White County Bridge Commission.

    On May 25, 1955,(9)  the House by a roll call vote of 
yeas 205 to nays 166, approved House Resolution 244 (called up as 
privileged by direction of the Committee on Rules), creating a select 
committee of three members to investigate and study the White County 
Bridge Commission, established by Public Law 37 of the 77th Congress, 
to ascertain whether that bridge, located near New Harmony, Ind., 
should be toll free, and to study receipts and expenditures of the 
commission since it was established in 1941.
---------------------------------------------------------------------------
 9. 101 Cong. Rec. 7036, 7043, 7044, 84th Cong. 1st Sess. The 
        resolution was reported on May 24, 1955 (H. Rept. No. 614).
---------------------------------------------------------------------------

Sec. 1.12 The House approved a resolution establishing a select 
    committee to investigate the National Labor Relations Board.

    On July 20, 1939,(10)  the House on a roll call vote of 
254 yeas to 134 nays approved House Resolution 258 (called up as 
privileged by direction of the Committee on Rules), establishing a 
select committee of five members to investigate the fairness of the 
National Labor Relations Board in its dealings with labor organizations 
and employers; the effect of the National Labor Relations Act on 
disputes between employers and em

[[Page 2290]]

ployees, on employment, and on general economic conditions; the 
desirability of amendments to the National Labor Relations Act; whether 
the Board has attempted to write into the National Labor Relations Act 
intents and purposes not justified by the act; and the need for 
legislation further to define and clarify the meaning of the term 
``interstate commerce'' and the relationship between employers and 
employees.
---------------------------------------------------------------------------
10. 84 Cong. Rec. 9582, 9592, 9593, 76th Cong. 1st Sess. The resolution 
        was reported on July 18, 1939 (H. Rept. No. 1215).
---------------------------------------------------------------------------

Economics

Sec. 1.13 The House rejected a resolution creating a special committee 
    to study prices paid for the necessities of life.

    On June 27, 1941,(11)  the House by a roll call vote of 
yeas 100 to nays 200, rejected House Resolution 212 (called up as 
privileged by direction of the Committee on Rules), to establish a 
select committee of five members to study prices paid for the 
necessities of life, and various problems facing purchasers of goods in 
the markets of the country.
---------------------------------------------------------------------------
11. 87 Cong. Rec. 5624, 5634, 77th Cong. 1st Sess. The resolution was 
        reported on June 24, 1941 (H. Rept. No. 848).
---------------------------------------------------------------------------

Sec. 1.14 The House established a special committee known as the 
    Committee on Post-War Economic Policy and Planning.

    On Jan. 26, 1944,(12)  the House by voice vote approved 
House Resolution 408 (called up as privileged by direction of the 
Committee on Rules), creating a special committee of 18 members to 
investigate all matters relating to post-war economic policy and 
programs; to gather and study information, plans, and suggestions; and 
to report to the House periodically.
---------------------------------------------------------------------------
12. 90 Cong. Rec. 753, 762, 763, 78th Cong. 2d Sess. The resolution was 
        reported on Jan. 25, 1944 (H. Rept. No. 1021).
---------------------------------------------------------------------------

Sec. 1.15 The House established a select committee to investigate 
    supplies and shortages of food, particularly meat.

    On Mar. 27, 1945,(13)  the House on a roll call vote of 
292 yeas to 7 nays approved House Resolution 195 (called up as 
privileged by direction of the Committee on Rules), creating a select 
committee to investigate shortages of food, particularly civilian meat 
supplies; factors relating to production and distribution of essential 
foodstuffs, particularly meat;

---------------------------------------------------------------------------
13. 91 Cong. Rec. 2862, 2863, 79th Cong. 1st Sess. The resolution was 
        reported on Mar. 21, 1945 (H. Rept. No. 356).
---------------------------------------------------------------------------

[[Page 2291]]

the presence of black markets in all kinds of meat; and the diversion 
of meat from normal, legitimate commercial channels of 
trade.(14) 

--------------------------------------------------------------------------
14. See 91 Cong. Rec. 2784, 79th Cong. 1st Sess., Mar. 26, 1945, for 
        text of this resolution.
---------------------------------------------------------------------------

Sec. 1.16 The House established a select committee to investigate 
    newsprint supplies.


    On Feb. 26, 1947,(15)  the House by a roll call vote of 
yeas 269 to nays 100, approved House Resolution 58 (called up as 
privileged by direction of the Committee on Rules), creating a select 
committee to study and investigate the need for adequate American 
supplies of newsprint, printing and wrapping paper, paper products, 
paper pulp and pulpwood; possible means of increasing these supplies by 
domestic production or import; and the assistance that could be 
rendered by American agencies or officers to increase supplies.
---------------------------------------------------------------------------
15. 93 Cong. Rec. 1457, 1458, 1465, 80th Cong. 1st Sess. The resolution 
        was reported on Feb. 18, 1947 (H. Rept. No. 41).
---------------------------------------------------------------------------

Sec. 1.17 The House established a select committee to investigate 
    transactions on commodity exchanges.

    On Dec. 18, 1947,(16)  the House by voice vote approved 
House Resolution 403 (called up as privileged by direction of the 
Committee on Rules), creating a select committee to investigate 
purchases and sales of commodities, including any activities of federal 
departments and agencies which have affected or may affect food prices 
as well as private acts and official activities of federal authorities 
in connection with the purchase or sale of other commodities.
---------------------------------------------------------------------------
16. 93 Cong. Rec. 11640, 11648, 80th Cong. 1st Sess. The resolution was 
        reported on Dec. 17, 1947 (H. Rept. No. 1221).
---------------------------------------------------------------------------

Sec. 1.18 The House established a select committee to investigate the 
    disposition of surplus property.

    On May 9, 1946,(17)  the House by voice vote approved 
House Resolution 385 (called up as privileged by direction of the 
Committee on Rules),(18)  creating a se

[[Page 2292]]

lect committee to study and investigate contracts entered into between 
the United States and purchasers and lessees of surplus real and 
personal property; methods by which such contracts were awarded and 
opportunities to bid on the contracts; the effects of this program of 
disposition; the disposition of surplus outside the United States; the 
advisability of governmental operation of facilities and the effect of 
governmental competition with private business in such operations; the 
adequacy or inadequacy of present statutes; and other matters deemed 
appropriate by the committee.
---------------------------------------------------------------------------
17. 92 Cong. Rec. 4750, 79th Cong. 2d Sess. The resolution was reported 
        on Apr. 9, 1946 (H. Rept. No. 1889).
18. See 92 Cong. Rec. 4568, 79th Cong. 2d Sess., May 7, 1946, for the 
        text of this resolution, and for discussion of the division of 
        time for debate. In this instance, the Chairman of the 
        Committee on Rules obtained unanimous consent to provide an 
        additional hour for debate. Since the chairman was opposed to 
        the resolution and had made the request in the absence of the 
        Member in charge of the resolution, some discussion ensued as 
        to the effect of the request in the circumstances.
---------------------------------------------------------------------------

Small Business

Sec. 1.19 The House established a select committee to investigate and 
    study war-time problems of small business.

    On Jan. 18, 1945,(19)  the House by voice vote approved 
House Resolution 64 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of nine members to 
investigate and study the problems of small business arising because of 
World War II, with particular reference to (1) whether the 
potentialities of small business were being adequately developed and 
utilized and, if not, what factors hindered development; (2) whether 
adequate consideration was being given to small business needs; (3) 
whether small business was being treated fairly; and (4) the need for a 
sound program for the solution of post-war problems of small 
business.(20) 
---------------------------------------------------------------------------
19. 91 Cong. Rec. 337, 341, 79th Cong. 1st Sess. The resolution was 
        reported on Jan. 16, 1945 (H. Rept. No. 21).
20. The nine-member Select Committee on Small Business with the same 
        jurisdiction was created on Jan. 22, 1943, by voice vote 
        approval of H. Res. 18. 89 Cong. Rec. 309, 310, 317, 78th Cong. 
        1st Sess.
---------------------------------------------------------------------------

Sec. 1.20 The House established a select committee to investigate 
    problems of small business.

    On Feb. 5, 1969,(1)  the House by voice vote approved 
House Resolution 66 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of 15 members to 
investigate problems affecting small business, including impediments to 
normal operations, growth, and development; administration of federal 
laws; and adequacy of gov

[[Page 2293]]

ernment service to the needs of small business.(2) 
---------------------------------------------------------------------------
 1. 115 Cong. Rec. 2778, 91st Cong. 1st Sess. The resolution was 
        reported on Jan. 23, 1969 (H. Rept. No. 7).
 2. See also, for example, 113 Cong. Rec. 2148-50, 90th Cong. 1st 
        Sess., Feb. 1, 1967, in which the House by voice vote approved 
        H. Res. 53, establishing a select committee to investigate 
        problems of small business and providing the same jurisdiction 
        as would H. Res. 66, of the 91st Congress. Authority for a 
        select committee on small business had been granted biennially 
        since 1941 (H. Res. 294, 77th Congress).
---------------------------------------------------------------------------

    Parliamentarian's Note: After adopting the rules for the 92d 
Congress on Jan. 22, 1971,(3) establishing the permanent 
Select Committee on Small Business (Rule X clause 3) the House by voice 
vote approved House Resolution 19 (called up as privileged by direction 
of the Committee on Rules), which dealt with the size of the committee, 
conferred subpena power, and authorized domestic travel.(4) 
Beginning in the 94th Congress, the Committee on Small Business became 
a standing committee of the House (see Rule X clause 1(s), House Rules 
and Manual, 1975).
---------------------------------------------------------------------------
 3. 117 Cong. Rec. 143, 144, 92d Cong. 1st Sess. See 117 Cong. Rec. 14, 
        92d Cong. 1st Sess., Jan. 21, 1971, for the text of H. Res. 5, 
        relating to adoption of the rules.
 4. See 117 Cong. Rec. 4593-95, 92d Cong. 1st Sess., Mar. 2, 1971, for 
        the text of and vote on H. Res. 19.
---------------------------------------------------------------------------

Taxation

Sec. 1.21 The House established a special committee to investigate tax-
    exempt foundations.

    On July 27, 1953,(5) the House by a roll call vote of 
yeas 209 to nays 163, approved House Resolution 217 (called up as 
privileged by direction of the Committee on Rules), creating a special 
committee to investigate and study tax-exempt educational and 
philanthropic foundations to determine whether their funds were being 
used for the purposes for which they were established, or for un-
American and subversive activities, propaganda, attempts to influence 
legislation, or other political purposes.
---------------------------------------------------------------------------
 5. 99 Cong. Rec. 10015, 10030, 83d Cong. 1st Sess. The resolution was 
        reported on July 13, 1953 (H. Rept. No. 773).
---------------------------------------------------------------------------

Sec. 1.22 The House substituted the Committee on Ways and Means for a 
    select committee to investigate duplication and overlapping of 
    taxes.

    On Sept. 27, 1951,(6) the House, after voice vote 
adoption of a Committee on Rules amendment substituting the Committee 
on Ways and Means for a select com

---------------------------------------------------------------------------
 6. 97 Cong. Rec. 12263, 12265, 82d Cong. 1st Sess. H. Res. 414 was 
        reported from the Committee on Rules on Sept. 26, 1951 (H. 
        Rept. No. 1056), and subsequently called up as privileged.
---------------------------------------------------------------------------

[[Page 2294]]

mittee of five members to investigate means and methods of eliminating 
overlapping between and duplication of sources of federal, state, and 
local taxes, approved House Resolution 414 authorizing such 
investigation by voice vote.

Domestic Military Activities

Sec. 1.23 The House established the select committee to investigate the 
    seizure of property of Montgomery Ward & Co.

    On May 5, 1944,(7) the House by a roll call vote of yeas 
300 to nays 60, approved House Resolution 521 (called up as privileged 
by direction of the Committee on Rules), creating a select committee of 
seven members to investigate the seizure by the Army of property of 
Montgomery Ward & Co., on Apr. 26, 1944, pursuant to Executive Order 
No. 9438.(8)
---------------------------------------------------------------------------
 7. 90 Cong. Rec. 4047, 4069, 4070, 78th Cong. 2d Sess. The resolution 
        was reported on May 2, 1944 (H. Rept. No. 1410).
 8. See Public Papers and Addresses of Franklin D. Roosevelt, 1944, 
        1945, Harper and Brothers Publishers (N.Y.), note p. 453, for a 
        discussion of this and other executive orders to seize property 
        of Montgomery Ward & Co.
---------------------------------------------------------------------------

Military Preparedness

Sec. 1.24 The House established a select committee known as the 
    Committee on Post-War Military Policy.

    On Mar. 28, 1944,(9) the House by voice vote created a 
select committee of 23 members to investigate all matters relating to 
post-war military requirements of the United States, to gather and 
study information, plans, and suggestions, and to report findings and 
conclusions to the House.
---------------------------------------------------------------------------
 9. 90 Cong. Rec. 3199, 3207, 78th Cong. 2d Sess. See H. Res. 465 
        (called up as privileged by the Committee on Rules. The 
        resolution was reported on Mar. 24, 1944 (H. Rept. No. 1286).
---------------------------------------------------------------------------

Sec. 1.25 After defeating the motion for the previous question, the 
    House laid on the table a resolution reported by the Committee on 
    Rules to create a special committee to investigate national 
    defense.

    On Mar. 11, 1941,(10) after defeating the motion for the 
previous question, the House by voice vote laid on the table House 
Resolution 120 (called up as privileged by direction of the Committee 
on Rules), creating a select committee to investigate all federal 
activities relating to the national

---------------------------------------------------------------------------
10. 87 Cong. Rec. 2182, 2189, 2190, 77th Cong. 1st Sess. The resolution 
        was reported on Mar. 10, 1941 (H. Rept. No. 222).
---------------------------------------------------------------------------

[[Page 2295]]

defense and to prepare, compile, and analyze data pertinent thereto to 
enable Congress to determine the need for appropriations or further 
legislation facilitating or abolishing any such activities.

Foreign Military Operations and Foreign Affairs

Sec. 1.26 The House agreed to a resolution establishing a select 
    committee to travel to Southeast Asia, investigate all aspects of 
    American military involvement there, and report back to the House 
    within 45 days.

    On June 8, 1970,(11) the House by a vote of 224 yeas to 
101 nays approved House Resolution 976 (called up as privileged by 
direction of the Committee on Rules), directing the Speaker to appoint 
a select committee of 12 members, including two from the Committee on 
Armed Services, two from the Committee on Foreign Affairs, and eight 
from the House at large, to travel to Southeast Asia to investigate all 
aspects of American military involvement and report to the House within 
45 days.
---------------------------------------------------------------------------
11. 116 Cong. Rec. 18656-71, 91st Cong. 2d Sess. The resolution was 
        reported on June 4, 1970 (H. Rept. No. 1160).
---------------------------------------------------------------------------

Sec. 1.27 The House established a select committee to investigate the 
    Katyn Forest massacre.

    On Sept. 18, 1951,(12) the House by voice vote approved 
House Resolution 390 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of seven members to 
study and investigate the facts, evidence, and extenuating 
circumstances relating to the massacre of thousands of Polish officers 
buried in a mass grave in the Katyn Forest on the banks of the Dnieper, 
near Smolensk, when it was a Nazi-occupied territory formerly 
controlled by the Union of Soviet Socialist Republics.
---------------------------------------------------------------------------
12. 97 Cong. Rec. 11545, 11554, 82d Cong. 1st Sess. The resolution was 
        reported on Aug. 16, 1951 (H. Rept. No. 885).
---------------------------------------------------------------------------

Sec. 1.28 The House established a select committee to investigate the 
    seizure of Lithuania, Latvia, and Estonia by the Union of Soviet 
    Socialist Republics.

    On July 27, 1953,(13) the House by voice vote approved 
House Resolution 346 (called up as privileged by direction of the 
Committee on Rules), creating a select committee to study and inves

[[Page 2296]]

tigate the seizure and forced incorporation of Lithuania, Latvia, and 
Estonia by the Union of Soviet Socialist Republics and the treatment of 
the people in such areas during and following the seizure and 
incorporation.
---------------------------------------------------------------------------
13. 99 Cong. Rec. 10031, 10037, 83d Cong. 1st Sess. The resolution was 
        reported on July 23, 1953 (H. Rept No. 903).
---------------------------------------------------------------------------

Veterans' Benefits

Sec. 1.29 The House established a select committee to investigate 
    alleged abuses in the education and training program for World War 
    II veterans.

    On Aug. 28, 1950,(14) the House by voice vote approved 
House Resolution 474 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of nine members to 
investigate and study alleged abuses in the education and training 
program for World War II veterans, and action taken or not taken by the 
Veterans' Administration and state authorities to prevent abuses under 
the Servicemen's Readjustment Act, as amended.
---------------------------------------------------------------------------
14. 96 Cong. Rec. 13629, 13632, 81st Cong. 2d Sess. The resolution was 
        reported on Aug. 16, 1950 (H. Rept. No. 2927).
---------------------------------------------------------------------------

Sec. 1.30 The House established a select committee to investigate 
    education, training, and loan guaranty programs for veterans.

    On Feb. 2, 1951,(15) the House by voice vote approved 
House Resolution 93 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of nine members to 
investigate, study, and evaluate alleged abuses in education, training, 
and loan guaranty programs for World War II veterans, and the action 
taken or not taken by the Veterans' Administration and state agencies 
to prevent abuses arising under the national service life insurance 
program (38 USC Sec. 701).
---------------------------------------------------------------------------
15. 97 Cong. Rec. 876, 82d Cong. 1st Sess. The resolution was reported 
        on Jan. 29, 1951 (H. Rept. No. 19).
---------------------------------------------------------------------------

Sec. 1.31 The House established a select committee to investigate and 
    study the benefits under federal law for the survivors of deceased 
    members of the armed forces.

    On Feb. 2, 1955,(16) the House by voice vote approved 
House Resolution 35 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of five members to 
investigate federal benefits for sur

---------------------------------------------------------------------------
16. 101 Cong. Rec. 1079-81, 84th Cong. 1st Sess. The resolution was 
        reported on Jan. 31, 1955 (H. Rept. No. 13).
---------------------------------------------------------------------------

[[Page 2297]]

vivors of members and former members of the armed forces.

Un-American Activities

Sec. 1.32 The House established a special committee to investigate un-
    American propaganda activities.

    On May 26, 1938,(17) the House by voice vote approved 
House Resolution 282 (called up as privileged by direction of the 
Committee on Rules), authorizing the Speaker to appoint a special 
committee of seven members to investigate un-American propaganda 
activities in the United States, domestic diffusion of such propaganda, 
and all other questions relating thereto.(18)
---------------------------------------------------------------------------
17. 83 Cong. Rec. 7568, 7586, 75th Cong. 3d Sess. The resolution was 
        reported on May 10, 1938 (H. Rept. No. 2319).
18. Authority for the select committee to investigate un-American 
        propaganda with the same jurisdiction as the above resolution 
        was continued, by subsequent privileged resolutions reported 
        from the Committee on Rules, as follows: by roll call vote of 
        302 yeas to 94 nays, on H. Res. 65 on Feb. 10, 1943 (89 Cong. 
        Rec. 795, 809, 810, 78th Cong. 1st Sess.); 331 yeas to 46 nays, 
        on H. Res. 420 on Mar. 11, 1942 (88 Cong. Rec. 2282, 2297, 77th 
        Cong. 2d Sess.); 354 yeas to 6 nays, on H. Res. 90 on Feb. 11, 
        1941 (87 Cong. Rec. 886-899, 77th Cong. 1st Sess.); 344 yeas to 
        21 nays, on H. Res. 321 on Jan. 23, 1940 (86 Cong. Rec. 572, 
        604, 605, 76th Cong. 3d Sess.); and 344 yeas to 35 nays, on H. 
        Res. 26 on Feb. 3, 1939 (84 Cong. Rec. 1098, 1127, 1128, 76th 
        Cong. 1st Sess.). An amendment to the rules, contained in H. 
        Res. 5, established the standing Committee on Un-American 
        Activities on Jan. 3, 1945 (91 Cong. Rec. 10-15, 79th Cong. 1st 
        Sess.). The Committee on Internal Security, established on Feb. 
        18, 1969 (115 Cong. Rec. 3723, 3746, 91st Cong. 1st Sess.) by 
        approval on a vote of 306 yeas to 80 nays, of H. Res. 89, 
        reported as privileged from the Committee on Rules, assumed the 
        jurisdiction of the Committee on Un-American Activities. 
        Commencing with the 94th Congress, the Committee on Internal 
        Security was abolished and its jurisdiction, files and staff 
        transferred to the Committee on the Judiciary (see Rule X 
        clause 1(m), House Rules and Manual, 1975).
---------------------------------------------------------------------------

Sec. 1.33 The House tabled a resolution to create a special committee 
    to investigate un-American activities.

    On Apr. 8, 1937,(19) the House on a division vote of 
yeas 184 to nays 38, laid on the table House Resolution 88 (called up 
as privileged by direction of the Committee on Rules), creating a 
special committee of seven members

---------------------------------------------------------------------------
19. 81 Cong. Rec. 3283, 3290, 75th Cong. 1st Sess. The resolution was 
        reported on Apr. 1, 1937 (H. Rept. No. 534).
---------------------------------------------------------------------------

[[Page 2298]]

to investigate organizations or groups of individuals operating within 
the United States which diffuse slanderous or libelous un-American 
propaganda of a religious, racial, or subversive nature tending to 
incite to the use of force and violence; and to investigate the extent 
and use of United States mail and postal services for the diffusion of 
these materials.

    Parliamentarian's Note: The House had previously created the 
Special Committee to Investigate Communist Activities, chaired by 
Hamilton Fish, Jr., of New York, and the Special Committee on Un-
American Activities, chaired by John W. McCormack, of Massachusetts, in 
1930 and 1934, respectively. Authority for each of these special 
committees had expired at the time House Resolution 88 was 
introduced.(20)
---------------------------------------------------------------------------
20. See the remarks of Mr. Lindsay C. Warren (N.C.), at 81 Cong. Rec. 
        3287, 76th Cong. 1st Sess., Apr. 8, 1937.
---------------------------------------------------------------------------

Scientific Activities

Sec. 1.34 The House established the Select Committee on Astronautics 
    and Space Exploration.

    On Mar. 5, 1958,(1) the House by voice vote approved 
House Resolution 496, which had been submitted by Majority Leader John 
W. McCormack, of Massachusetts, by unanimous consent. The resolution 
was for purposes of creating the Select Committee on Astronautics and 
Space Exploration of 13 members to investigate all aspects of and 
problems relating to the exploration of outer space and the control, 
development, and use of astronautical resources, personnel, and 
facilities.
---------------------------------------------------------------------------
 1. 104 Cong. Rec. 3443, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

    On July 21, 1958,(2) the standing Committee on Science 
and Astronautics was established by voice vote approval of House 
Resolution 580 (called up as privileged by direction of the Committee 
on Rules), amending Rule X clause 1 by adding subclause 
(q).(3)
---------------------------------------------------------------------------
 2. 104 Cong. Rec. 14513, 14514, 85th Cong. 2d Sess.
 3. The resolution was reported on May 29, 1958 (H. Rept. No. 1837). 
        See Sec. 1.44, infra, for a discussion of Senate establishment 
        of the Special Committee on Astronautical and Space Exploration 
        and a successor standing committee, the Committee on 
        Astronautical and Space Sciences.
---------------------------------------------------------------------------

Sec. 1.35 The House established a select committee to investigate 
    research programs.

    On Sept. 11, 1963,(4) the House by a roll call vote of 
336 yeas to 0

---------------------------------------------------------------------------
 4. 109 Cong. Rec. 16744, 16753, 16754, 88th Cong. 1st Sess. The 
        resolution was reported on Aug. 28, 1963 (H. Rept. No. 718).
---------------------------------------------------------------------------

[[Page 2299]]

nays approved House Resolution 504 (called up as privileged by 
direction of the Committee on Rules), creating a select committee of 
nine members to investigate expenditures for research programs, 
government departments and agencies which conduct research and amounts 
expended thereby, and facilities for coordinating research programs, 
including grants to colleges and universities.

Chemicals in Food Production

Sec. 1.36 The House established a select committee to investigate the 
    use of chemicals in the production of food products.

    On June 20, 1950,(5) the House by voice vote approved 
House Resolution 323 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of seven members to 
investigate and study the use of chemicals, pesticides, and 
insecticides in the production of food products and fertilizers and 
their effects on the health and welfare of the nation, stability of the 
agricultural economy, soil, health of animals, and vegetation.
---------------------------------------------------------------------------
 5. 96 Cong. Rec. 8933-36, 81st Cong. 2d Sess. The resolution was 
        reported on June 12, 1950 (H. Rept. No. 2214).
---------------------------------------------------------------------------

Airplane Crashes

Sec. 1.37 The House established a select committee to investigate 
    crashes of commercial airplanes in 1940 and 1941.

    On Mar. 6, 1941,(6) the House by voice vote approved 
House Resolution 125 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of five members to 
investigate air crashes and other accidents in the United States in 
1940 and 1941 occurring on commercial airlines; to ascertain pertinent 
facts relating to the construction of flying and ground equipment and 
the management and operation of airlines; to examine laws and 
regulations relating to operation and inspection of airplanes and 
safety equipment, and the liability of airlines for loss of life or 
injury to persons or property; and to investigate other matters as 
deemed necessary by the committee.
---------------------------------------------------------------------------
 6. 87 Cong. Rec. 1930, 1931, 1940, 77th Cong. 1st Sess. The resolution 
        was reported on Mar. 4, 1941 (H. Rept. No. 183).
---------------------------------------------------------------------------

Migration of Destitute Citizens

Sec. 1.38 The House established a select committee to inves

[[Page 2300]]

    tigate the interstate migration of destitute citizens.

    On Apr. 22, 1940,(7) the House by voice vote approved 
House Resolution 63 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of five members to 
investigate the social and economic needs and interstate migration of 
destitute persons.(8)
---------------------------------------------------------------------------
 7. 86 Cong. Rec. 4880, 4884, 76th Cong. 3d Sess. The resolution was 
        reported on Apr. 19, 1940 (H. Rept. No. 1998).
 8. Authority for this select committee was continued by voice vote 
        approval of H. Res. 113, on Mar. 31, 1941. 87 Cong. Rec. 2730, 
        2736, 77th Cong. 1st Sess. The resolution which was privileged, 
        was reported on Mar. 31 from the Committee on Rules (H. Rept. 
        No. 350). It was called up that same day, by direction of the 
        Committee on Rules, by Mr. Lawrence Lewis [Colo.], who asked 
        unanimous consent for its consideration.
---------------------------------------------------------------------------

Pensions

Sec. 1.39 The House established a select committee to investigate old-
    age pension plans.

    On Mar. 10, 1936,(9) the House by voice vote approved 
House Resolution 443, authorizing the Speaker to appoint eight members 
to a select committee to inquire into old-age pension plans with 
respect to which legislation had been submitted to the House, 
particularly the plan embodied in a House bill (H.R. 7154), providing 
for retirement annuities; and to examine the conduct, history, and 
records of persons or groups promoting such plans. The resolution was, 
by unanimous consent, submitted by Mr. C. Jasper Bell, of Missouri, and 
was intended as a modification and clarification of House Resolution 
418, which had previously been reported from the Committee on Rules (H. 
Rept. No. 2005), and adopted.
---------------------------------------------------------------------------
 9. 80 Cong. Rec. 3506, 3507, 74th Cong. 2d Sess. See Id. at p. 2360 
        (Feb. 19, 1936), for adoption of the related resolution H. Res. 
        418.

---------------------------------------------------------------------------
Offensive Literature

Sec. 1.40 The House established a select committee to investigate 
    current literature.

    On May 12, 1952,(10) the House by voice vote approved 
House Resolution 596 (called up as privileged by direction of the 
Committee on Rules), creating a select committee of nine members to 
investigate and study the extent to which current literature, books, 
and magazines containing im

---------------------------------------------------------------------------
10. 98 Cong. Rec. 5061, 5062, 5069, 82d Cong. 2d Sess. The resolution 
        was reported on Apr. 30, 1952 (H. Rept. No. 1837).
---------------------------------------------------------------------------

[[Page 2301]]

moral, obscene, or otherwise offensive matter, or placing an improper 
emphasis on crime, violence, and corruption, were being made available 
to Americans through the mail and otherwise, and to determine the 
adequacy of existing law to prevent the publication and distribution of 
this literature.
Crime

Sec. 1.41 The House established a select committee to study crime in 
    the United States.

    On May 1, 1969,(11) the House by a roll call vote of 
yeas 345 to nays 18, approved House Resolution 17, reported as 
privileged from the Committee on Rules, establishing a select committee 
of seven members to investigate all aspects of crime in the United 
States including causes and effects; preparation of statistics; 
exchange of information among federal, state, local, and foreign law 
enforcement agencies; treatment and rehabilitation of offenders; and 
prevention and control.(12)
---------------------------------------------------------------------------
11. 115 Cong. Rec. 11087, 11100, 11101, 91st Cong. 1st Sess. The 
        resolution was reported on Apr. 22, 1969 (H. Rept. No. 150).
12. The House by voice vote approved H. Res. 115, which authorized an 
        investigation of the same issues on Mar. 9, 1971. 117 Cong. 
        Rec. 5587, 5588, 5610, 92d Cong. 1st Sess.

---------------------------------------------------------------------------
Energy

Sec. 1.42 The House rejected a resolution establishing a select 
    committee to investigate energy resources.

    On May 26, 1971,(13) the House by a roll call vote of 
yeas 128 and nays 218, rejected House Resolution 155 (called up as 
privileged by direction of the Committee on Rules), creating a select 
committee of seven members to investigate availability and ownership of 
oil, gas, coal, and nuclear energy reserves; reasons and possible 
solutions for delay in new starts of fossil fueled power plants; 
effects of pricing practices; effects of import of low sulfur fuels; 
measures to increase transportation of fuel materials and close the gap 
between supply and demand of electric energy; and the environmental 
effects of the electricity industry
---------------------------------------------------------------------------
13. 117 Cong. Rec. 16984, 17002, 17003, 92d Cong. 1st Sess. The 
        resolution was reported on May 19, 1971 (H. Rept. No. 217).

---------------------------------------------------------------------------
Sit-down Strikes

Sec. 1.43 The House laid on the table a resolution to create a special 
    committee to investigate sit-down strikes.

[[Page 2302]]

    On Apr. 8, 1937,(14) the House by voice vote agreed to a 
motion to table House Resolution 162 (called up as privileged by 
direction of the Committee on Rules), to authorize the Speaker to 
appoint a special committee to investigate the causes and management of 
sit-down strikes and state and local efforts to prevent them, as well 
as persons instigating such strikes.
---------------------------------------------------------------------------
14. 81 Cong. Rec. 3291, 3301, 75th Cong. 1st Sess. The resolution was 
        reported on Apr. 2, 1937 (H. Rept. No. 555)

---------------------------------------------------------------------------
Senate Precedents

Sec. 1.44 The Senate established the Special Committee on Astronautical 
    and Space Exploration.

    On Feb. 6, 1958,(15) the Senate on a roll call vote of 
78 yeas to 1 nay approved Senate Resolution 256, establishing a special 
committee of 13 Senators to investigate all aspects and problems 
relating to the exploration of outer space and control, development, 
and use of astronautical resources, personnel, equipment, and 
facilities.(16)
---------------------------------------------------------------------------
15. 104 Cong. Rec. 1804, 1806, 85th Cong. 2d Sess.
16. The Senate established the standing Committee on Astronautical and 
        Space Sciences which assumed the functions of the select 
        committee on July 24, 1958. See 104 Cong. Rec. 14857, 14858, 
        85th Cong. 2d Sess., for voice vote approval of S. Res. 327. 
        See also Sec. 1.34, supra, for House establishment of the 
        Select Committee on Astronautics and Space Exploration and the 
        successor standing committee, the Committee on Science and 
        Astronautics.

Sec. 1.45 The Senate established a special committee to investigate 
    contracts under the national defense program.

    On Mar. 1, 1941,(17) the Senate by voice vote approved 
Senate Resolution 71, establishing a special committee of seven 
Senators to investigate the operation of the program for procurement 
and construction of supplies, materials, munitions, vehicles, aircraft, 
vessels, plants, camps, and other articles and facilities in connection 
with the national defense. Areas of inquiry included (1) types and 
terms of contracts awarded on behalf of the United States; (2) methods 
by which contracts are awarded and contractors selected; (3) 
utilization of small business facilities; (4) geographic distribution 
of contracts and location of plants and facilities; (5) effect of the 
program with respect to labor and migration of labor; (6) perform

---------------------------------------------------------------------------
17. 87 Cong. Rec. 1615, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2303]]

ance of contracts and accountings required of contractors; (7) benefits 
accruing to contractors with respect to amortization for taxation and 
other purposes; and (8) practices of management or labor, and prices, 
fees, and charges which interfere with the defense program or unduly 
increase its cost.


Sec. 1.46 The Senate established the Select Committee on Presidential 
    Campaign Activities to investigate the extent, if any, of illegal, 
    improper, or unethical activities engaged in by persons involved in 
    the Presidential election of 1972.

    On Feb. 7, 1973,(18) the Senate by a roll call vote of 
77 yeas to 0 nays approved Senate Resolution 60, establishing the 
Select Committee on Presidential Campaign Activities to investigate the 
extent, if any, of involvement in illegal, improper, or unethical 
conduct by persons in the Presidential campaign of 1972. Areas of 
inquiry included (1) breaking, entering, and bugging of headquarters or 
offices of the Democratic National Committee in the Watergate Building; 
(2) electronic surveillance of the Democratic National Committee; (3) 
surreptitious removal of documents; (4) preparation, transmission, or 
receipt of reports on the aforementioned activities; (5) whether any 
person alone or with others planned the aforementioned activities; (6) 
whether participants in the aforementioned activities were induced by 
bribery, coercion, or threats to plead guilty or conceal or fail to 
reveal such activities; (7) efforts to disrupt, hinder, impede, or 
sabotage campaign activities; (8) whether any person alone or with 
others induced activities mentioned in (7) above or paid participants; 
(9) fabrication, dissemination, or publication of false charges or 
information to discredit Presidential aspirants; (10) planning of 
activities mentioned in (7), (8), or (9); (11) financial transactions 
and storage; (12) compliance or noncompliance with congressional acts 
which require reporting of receipt or disbursement of money; (13) 
whether secret funds were kept; (14) whether documents or other 
physical evidence were concealed, suppressed, or destroyed; and (15) 
any other activities having a tendency to prove or disprove that 
persons acting alone or with others engaged in illegal, improper, or 
unethical activities in connection with the Presidential election of 
1972.

-------------------------------------------------------------------------
18. 119 Cong. Rec. 3849-51, 93d Cong. 1st Sess.
-------------------------------------------------------------------------


[[Page 2304]]



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                 B. INQUIRIES AND THE EXECUTIVE BRANCH
 
Sec. 2. Resolutions of Inquiry and Responses


    Resolutions of inquiry are usually simple resolutions used to 
obtain information from the executive branch. Such resolutions, if 
addressed to the President or head of an executive department, are 
given privileged status in the House, provided they seek information of 
a factual nature, rather than request opinions or require an 
investigation on the subject.(19)
---------------------------------------------------------------------------
19. See House Rules and Manual Sec. Sec. 856 and 857 (1973).
---------------------------------------------------------------------------

    The effectiveness of such a resolution derives from comity between 
the branches of government rather than from any elements of 
compulsion.(20)
---------------------------------------------------------------------------
20. See Sec. 4, infra, for a discussion of legal proceedings initiated 
        by a Senate select committee to enforce a subpena issued to the 
        President. Other methods to obtain information include 
        committee or subcommittee oral or written requests for 
        documents or testimony from the President or cabinet officers.
---------------------------------------------------------------------------

    Certain conventions have arisen with regard to the wording of 
resolutions of inquiry. Thus, the House traditionally ``requests'' the 
President and ``directs'' the heads of executive departments to furnish 
information.(21) Moreover, such resolutions often include 
the qualifying phrase, ``if not incompatible with the public 
interest,'' particularly where the request is for information relating 
to foreign affairs.(1)
---------------------------------------------------------------------------
21. 3 Hinds' Precedents Sec. Sec. 1856, 1895; and Rule XXII clause 5, 
        House Rules and Manual Sec. 856 (1973).
 1. See 3 Hinds' Precedents Sec. 1899, ``directing'' the President, and 
        Sec. Sec. 2.1, 2.2, and 2.7, infra, ``directing'' the President 
        and other officers, and Sec. Sec. 2.15, and 2.21-2.23, infra, 
        ``requesting'' certain department heads.
---------------------------------------------------------------------------

    The ensuing precedents are illustrative of resolutions of inquiry 
directed to the President,(2) Secretary of 
State,(3) Secretary of Defense,(4) Attorney 
General,(5) Acting Attorney General,(6) Secretary 
of Commerce,(7) Secretary of the Interior,(8) 
Secretary of Health, Education, and Welfare,(9) and 
Postmaster General.(10) The emphasis in these precedents is 
upon the nature of the information requested in each case, and the 
response if any to the resolution of inquiry.(11) Actual 
floor procedures

[[Page 2305]]

relating to the use of resolutions of inquiry, and prerequisites for 
privileged status, are treated in detail elsewhere.(12) 
Generally, formal responses to resolutions of inquiry are laid before 
the House, referred to the committee having jurisdiction, and ordered 
printed but more informal responses to resolutions of inquiry are 
sometimes forwarded directly to the interested committee or Members, 
even where the resolution itself has been tabled or not otherwise 
disposed of. (See, e.g. Sec. 2.11, infra.)
---------------------------------------------------------------------------
 2. See Sec. Sec. 2.1, 2.2, 2.7, and 2.16, infra.
 3. See Sec. Sec. 2.1-2.5, 2.9-2.11, 2.13-2.1.5, 2.21, and 2.26, infra.
 4. See Sec. Sec. 2.1, 2.6-2.8, 2.12, and 2.15 infra.
 5. See Sec. Sec. 2.18 and 2.19, infra.
 6. See Sec. 2.17, infra.
 7. See Sec. Sec. 2.20, 2.22, infra.
 8. See Sec. 2.23, infra.
 9. See Sec. 2.24, infra.
10. See Sec. 2.25, infra.
11. See 2 Hinds' Precedents Sec. 1596, 3 Hinds' Precedents 
        Sec. Sec. 1856-1910, and 6 Cannon's Precedents Sec. Sec. 404-
        437, for earlier precedents.
12. See Ch. 24, infra.                          -------------------
---------------------------------------------------------------------------

Foreign Affairs--American Military Involvement in South Vietnam

Sec. 2.1 A resolution of inquiry directing the President, Secretary of 
    State, Secretary of Defense, and Director of the Central 
    Intelligence Agency to furnish information relating to the history 
    and rationale for American involvement in South Vietnam, nature and 
    capacity of the South Vietnamese government, and plans for 
    elections in the Republic of South Vietnam was held not privileged 
    in response to a point of order.

    On July 7, 1971,(13) Speaker Carl Albert, of Oklahoma, 
sustained a point of order against a resolution of inquiry, House 
Resolution 491, directing the President, Secretary of State, Secretary 
of Defense, and Director of the Central Intelligence Agency to furnish, 
within 15 days after adoption of the resolution, full and complete 
information on the following: (1) the history and rationale of American 
involvement in South Vietnam since completion of the study ``United 
States-Vietnam Relationships, 1945-1967,'' (the Pentagon Papers) 
prepared by the Vietnam Task Force, Office of the Secretary of Defense; 
(2) the known existing plans for a residual force of American armed 
forces in South Vietnam; (3) the nature and capacity of the South 
Vietnamese government, including but not limited to their past and 
present military capabilities; the capacity for self-sufficiency 
including but not limited to the political base of the Republic, the 
scope if any, of governmental malfunction and corruption; the depth of 
popular support and procedures for dealing with nonsupport including

[[Page 2306]]

but not limited to known existing studies of the economy and internal 
workings of the government of the Republic of South Vietnam; and (4) 
American and South Vietnamese plans and procedures for Nov. 1971 
elections in the Republic of South Vietnam, including but not limited 
to United States covert or non-covert involvement in those elections.
---------------------------------------------------------------------------
13. 117 Cong. Rec. 23810, 23811, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    The Speaker sustained the point of order raised by F. Edward 
Hebert, of Louisiana, Chairman of the Committee on Armed Services, on 
the ground that the resolution sought opinions rather than facts. The 
ruling was made when Ms. Bella S. Abzug, of New York, moved to 
discharge the Committee on Armed Services from further consideration of 
the resolution under Rule XXII clause 5.
    Parliamentarian's Note: Although the issue was not raised in this 
instance, the reference to the Director of Central Intelligence would 
have destroyed the privilege if a point of order had been raised on 
that ground. 6 Cannon's Precedents Sec. 406 indicates that the term 
``heads of executive departments'' in Rule XXII clause 
5,(14) refers exclusively to members of the President's 
cabinet and only resolutions of inquiry addressed to these heads of 
executive departments are privileged. (The resolution at issue in 
Sec. 406 to which Cannon referred was addressed to the Federal Reserve 
Board.) See also 3 Hinds' Precedents Sec. Sec. 1861-1863, and 5 Hinds' 
Precedents Sec. 7283, for other relevant precedents.
---------------------------------------------------------------------------
14. House Rules and Manual Sec. Sec. 855, 856 (1973).
---------------------------------------------------------------------------

Sec. 2.2 The House laid on the table resolutions of inquiry directing 
    the President and Secretary of State to furnish the report entitled 
    ``United States-Vietnam Relationships, 1945-1967,'' also known as 
    the Pentagon Papers.

    On June 30, 1971,(15) the House, by a roll call vote of 
yeas 272 to nays 113, tabled a privileged resolution of inquiry 
reported adversely by the Committee on Armed Services, House Resolution 
489, directing the President to furnish the House, within 15 days after 
adoption of the resolution, the full and complete text of the study 
entitled ``United States-Vietnam Relationships, 1945-1967,'' also known 
as the Pentagon Papers, prepared by the Vietnam Task Force, Office of 
the Secretary of Defense.
---------------------------------------------------------------------------
15. 117 Cong. Rec. 23030, 23031, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    On the same date,(16) the House by voice vote tabled an 
identical

---------------------------------------------------------------------------
16. Id. at p. 23031.
---------------------------------------------------------------------------

[[Page 2307]]

resolution, House Resolution 490, and on July 7, 1971,(17) 
by voice vote tabled House Resolution 494, directing the Secretary of 
State to furnish this study.

---------------------------------------------------------------------------
17. Id. at p. 23808.
---------------------------------------------------------------------------

South Vietnamese Presidential Election

Sec. 2.3 The House laid on the table a privileged resolution of inquiry 
    directing the Secretary of State to furnish communications between 
    the Department of State, the United States Embassy in Saigon, and 
    certain Vietnamese presidential candidates which might relate to 
    the Vietnamese presidential elections.

    On Sept. 30, 1971,(18) the House by voice vote tabled a 
privileged resolution of inquiry reported adversely by the Committee on 
Foreign Affairs, House Resolution 595, directing the Secretary of State 
to furnish to the House, within one week after adoption of the 
resolution, the complete text of all communications, as described 
above, taking place since Jan. 1, 1971, pertaining to the 1971 
Vietnamese presidential election.
---------------------------------------------------------------------------
18. 117 Cong. Rec. 34266, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    Following this action the House by unanimous consent tabled House 
Resolution 619, which was identical to House Resolution 595 and had 
also been adversely reported by the Committee on Foreign Affairs.

Sec. 2.4 The House laid on the table two privileged resolutions of 
    inquiry directing the Secretary of State to furnish information 
    relating to an election in South Vietnam.

    On Oct. 20, 1971,(19) the House laid on the table two 
identically worded resolutions of inquiry, House Resolution 632 and 
House Resolution 638, directing the Secretary of State to furnish to 
the Committee on Foreign Affairs,(20) not later than 15 days 
after adoption of the resolution, materials relating to the Oct. 3, 
1971, Vietnamese election, including: (1) all documents and other 
pertinent information relating to public opinion surveys financed by 
the United States in Vietnam; (2) all documents and other information 
relating to use by South Vietnamese authorities of radio and television 
facilities financed by the United States; (3) all press re

---------------------------------------------------------------------------
19. 117 Cong. Rec. 37055, 37057, 92d Cong. 1st Sess.
20. See Sec. 2.26, infra, for a discussion of this precedent as it 
        relates to requesting a head of an executive department to 
        respond directly to a committee rather than to the House.
---------------------------------------------------------------------------

[[Page 2308]]

leases by American officials in Saigon; (4) all communications between 
American and South Vietnamese officials; and (5) all representations 
made to the participants in that election by American officials 
concerning the desire that the election be free and contested.

    These resolutions, reported adversely by the Committee on Foreign 
Affairs, were laid on the table by voice votes.

Phoenix Program

Sec. 2.5 The House laid on the table a privileged resolution of inquiry 
    directing the Secretary of State to furnish the House certain 
    information regarding the Phoenix Program.

    On July 7, 1971,(1) the House by voice vote tabled a 
privileged resolution reported adversely from the Committee on Foreign 
Affairs, House Resolution 493, directing the Secretary of State, to the 
extent not incompatible with the public interest, to furnish the House, 
not later than 15 days following adoption of the resolution, all 
documents in the English language with respect to (1) the Phoenix 
Program, a counterintelligence operation conducted in South Vietnam, 
and (2) the extent of U.S. involvement in that program.
---------------------------------------------------------------------------
 1. 117 Cong. Rec. 23808, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

Bombardment of North Vietnam

Sec. 2.6 The House laid on the table a resolution of inquiry directing 
    the Secretary of Defense to furnish information relating to 
    American air and naval bombardment of North Vietnam.

    On Aug. 16, 1972,(2) the House by voice vote tabled a 
privileged resolution of inquiry reported adversely by the Committee on 
Armed Services, House Resolution 1078, directing the Secretary of 
Defense, to the extent not incompatible with the public interest, to 
furnish, not later than seven days after adoption of the resolution, 
information relating to American air and naval bombardment of North 
Vietnam since Mar. 1, 1972, including (1) the number of sorties flown 
and types of ordnance used each month; (2) post-action reports and bomb 
damage assessments, both written and photographic; and (3) specific 
descriptions and photographic evidence of all damage to dikes, cit

---------------------------------------------------------------------------
 2. 118 Cong. Rec. 28365, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

[[Page 2309]]

ies, and villages of North Vietnam.

Sec. 2.7 The House laid on the table a resolution of inquiry directing 
    the President and Secretary of Defense to furnish information 
    relating to American bombing of North Vietnam in 1972 and 1973.

    On Mar. 6, 1973,(3) the House by voice vote tabled a 
resolution of inquiry reported adversely by the Committee on Armed 
Services, House Resolution 26, directing the President (4) 
and Secretary of Defense within 10 days after adoption of the 
resolution to furnish the House information relating to American 
bombing of North Vietnam from Dec. 17, 1972, through Jan. 3, 1973, 
including: (1) the number of sorties flown; (2) tonnage of bombs and 
shells fired or dropped; (3) the number and nomenclature of American 
airplanes lost; (4) the number of Americans killed, wounded, captured, 
and missing in action; (5) best available estimates of North Vietnamese 
casualties; (6) the cost of all bombing and shelling; and (7) the 
extent of damage to any and all facilities struck by bombs.
---------------------------------------------------------------------------
 3. 119 Cong. Rec. 6383, 6384, 93d Cong. 1st Sess.
 4. To ``direct'' the President to furnish information contravenes 
        standard practice. Although the House ``directs'' a head of an 
        executive department, it usually ``requests'' the President to 
        furnish information. See 3 Hinds Precedents Sec. Sec. 1856, 
        1895.
---------------------------------------------------------------------------

    Parliamentarian's Note: House Resolution 26 was technically not 
privileged because the request for information on the ``extent of 
damage'' to facilities struck by bombs required an opinion or 
investigation.(5)
---------------------------------------------------------------------------
 5. See Rule XXII clause 5, House Rules and Manual Sec. 857 (1973) and 
        Ch. 24, infra, for discussions of the requirements for 
        privileged status.
---------------------------------------------------------------------------

    On the same date,(6) the House also tabled House 
Resolutions 114, 115, and 143, which were identical to House Resolution 
26, except that they did not mention the President or ``extent of 
damage'' to facilities struck by bombs.
---------------------------------------------------------------------------
 6. 119 Cong. Rec. 6384, 6385, 93d Cong. 1st Sess., Mar. 6, 1973.
---------------------------------------------------------------------------

Sec. 2.8 The House laid on the table a privileged resolution of inquiry 
    directing the Secretary of Defense to furnish certain information 
    relating to prisoner of war camps in North Vietnam and American 
    bombing in North Vietnam.

    On Aug. 16, 1972,(7) the House by voice vote tabled a 
privileged resolution of inquiry, House Resolution 1079, reported 
adversely by

---------------------------------------------------------------------------
 7. 118 Cong. Rec. 28365, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

[[Page 2310]]

the Committee on Armed Services, directing the Secretary of Defense, to 
the extent not incompatible with the public interest, to furnish to the 
House not later than seven days after the adoption of the resolution: 
(1) maps showing all known or suspected prisoner of war camps in North 
Vietnam; (2) maps showing all bombing strikes and naval bombardments 
from Mar. 1, 1972, to date; and (3) rules of engagement promulgated for 
the bombing of North Vietnam for the same period, and a description of 
procedures, policies, and actions taken by American Armed Forces to 
prevent danger to American prisoners of war.

Laotian Operations

Sec. 2.9 The House laid on the table a privileged resolution of inquiry 
    directing the Secretary of State to furnish the House certain 
    information respecting bombing operations in northern Laos.

    On July 7, 1971,(8) the House by voice vote agreed to 
table a privileged resolution of inquiry reported adversely by the 
Committee on Foreign Affairs, House Resolution 495, directing the 
Secretary of State, to the extent not incompatible with the public 
interest, to furnish, within 15 days after adoption of the resolution, 
any documents respecting the rules of engagement and targeting, and 
procedures followed by the U.S. Ambassador in Laos with respect to the 
direction and control of American bombing operations in northern Laos 
during the period from Jan. 1, 1965, through June 21, 1971, together 
with the most recent aerial photographs of 196 Laotian villages which 
were identified in the resolution.
---------------------------------------------------------------------------
 8. 117 Cong. Rec. 23808-10, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 2.10 The House laid on the table a privileged resolution of 
    inquiry directing the Secretary of State to furnish information 
    regarding American, Thai, and other foreign nation military and 
    diplomatic operations in Laos.

    On July 7, 1971,(9) the House by a roll call vote of 
yeas 261 to nays 118, tabled a privileged resolution of inquiry 
reported adversely by the Committee on Foreign Affairs, House 
Resolution 492, directing the Secretary of State, to the extent not 
incompatible with the public interest, to furnish to the House, not 
later than 15 days

---------------------------------------------------------------------------
 9. 117 Cong. Rec. 23800, 23807, 23808, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2311]]

after adoption of the resolution, any documents containing policy 
instructions or guidelines given to the American Ambassador in Laos for 
the purpose of his administration of certain operations in Laos, 
between Jan. 1, 1964, and June 21, 1971. Information was sought 
particularly with regard to: (1) covert Central Intelligence Agency 
operations in Laos; (2) Thai and other foreign armed forces operations 
in Laos; (3) American bombing operations other than along the Ho Chi 
Minh Trail; (4) American Armed Forces operations in Laos; and (5) 
United States Agency for International Development operations which 
have served to assist, directly or indirectly, military or Central 
Intelligence Agency operations in Laos, and details of such assistance.

American Bombing of Cambodia and Laos

Sec. 2.11 The House laid on the table a privileged resolution of 
    inquiry directing the Secretary of State to furnish information 
    relating to American bombing of Cambodia and Laos in 1973.

    On May 9, 1973,(10) the House by voice vote tabled a 
privileged resolution of inquiry reported adversely by the Committee on 
Armed Services, House Resolution 379, directing the Secretary of State 
to furnish within 10 days after adoption of the resolution information 
relating to American bombing of Cambodia and Laos from Jan. 27, 1973, 
through Apr. 30, 1973, including: (1) the number of sorties flown; (2) 
tonnage of bombs and shells fired and dropped; (3) number and 
nomenclature of American airplanes lost; (4) number of Americans 
killed, wounded, captured, or missing in action; (5) cost of all 
American bombing and shelling; (6) number of sorties flown by American 
military airplanes for purposes other than bombing; (7) cost of all 
actions other than bombing; (8) number, rank, location, and nature of 
activity of American ground personnel in Cambodia and Laos; (9) the 
order of battle of all forces, both combat and noncombat, in Cambodia 
and Laos, including North Vietnamese, ARVN (Army of the Republic of 
[South] Vietnam), Viet Cong, American, and indigenous; and, for the 
period from Oct. 30, 1972, through Jan. 27, 1973, certain related 
information, including the tonnage of bombs dropped and sorties flown 
by American airplanes emanating from Thailand.

---------------------------------------------------------------------------
10. 119 Cong. Rec. 14990, 14991, 14994, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2312]]

The resolution also inquired as to the legal authority for American 
military activity in Cambodia and Laos since Jan. 27, 1973; and the 
extent of involvement of American Embassy personnel in military 
operations in or over Cambodia and Laos between Jan. 27, 1973, through 
Apr. 30, 1973.

    Answers to questions in this resolution of inquiry were provided by 
witnesses from the Department of Defense at a hearing of the Committee 
on Armed Services held on May 8, 1973. Following this hearing, 
committee members voted 36 yeas to 0 nays to report the resolution 
adversely.(11)
---------------------------------------------------------------------------
11. See 119 Cong. Rec. 14991-93, 93d Cong. 1st Sess., for a transcript 
        of answers and remarks of F. Edward Hebert (La.), Chairman of 
        the Committee on Armed Services, explaining the hearing on May 
        8, 1973.
---------------------------------------------------------------------------

    The motion to table was offered immediately after the resolution. 
was reported because the Chairman of the Committee on Armed Services, 
F. Edward Hebert, of Louisiana, requested and obtained unanimous 
consent for immediate consideration of the resolution, thereby waiving 
the three-day availability requirement of Rule XI clause 27(d)(4).

Military Aid to Forward-defense and Mediterranean Nations

Sec. 2.12 The House laid on the table a privileged resolution of 
    inquiry directing the Secretary of Defense to furnish information 
    regarding the extent of military assistance to forward-defense and 
    Mediterranean nations.

    On Aug. 3, 1971,(12) the House by voice vote tabled a 
privileged resolution of inquiry reported adversely by the Committee on 
Armed Services, House Resolution 557, directing the Secretary of 
Defense, to the extent not incompatible with the public interest, to 
furnish to the House, not later than 15 days after adoption of the 
resolution, any documents regarding all forms of American military aid 
extended to the forward-defense nations of Greece, Turkey, Nationalist 
China, and South Korea as well as to Israel, Jordan, Morocco, Libya, 
Tunisia, Lebanon, Syria, and Saudi Arabia, between Jan. 1, 1969, and 
July 21, 1971.(13)
---------------------------------------------------------------------------
12. 117 Cong. Rec. 29063, 29064, 92d Cong. 1st Sess.
13. See Ch. 24, infra, for a discussion of the proper time to call up a 
        resolution of inquiry.

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

[[Page 2313]]

Presidential Agreements With British Prime Minister

Sec. 2.13 The House agreed to a privileged resolution of inquiry 
    directing the Secretary of State to transmit information regarding 
    any agreements made by the President and the Prime Minister of 
    Great Britain during conversations held in Jan. 1952, after 
    rejecting a motion to lay the resolution on the table.

    On Feb. 20, 1952,(14) after rejecting the motion to 
table by a roll call vote of yeas 150 to nays 184, the House by a roll 
call vote of yeas 189 to nays 143, approved a privileged resolution of 
inquiry reported adversely by the Committee on Foreign Affairs, House 
Resolution 514, directing the Secretary of State, at the earliest 
practicable date, to transmit to the House information with respect to 
any agreements, commitments, or understandings entered into by the 
President and Prime Minister of Great Britain in the course of their 
conversations during Jan. 1952, which might require the shipment of 
additional members of the armed forces beyond the continental limits of 
the United States or involve American forces in armed conflict on 
foreign soil.(15)
---------------------------------------------------------------------------
14. 98 Cong. Rec. 1205, 1207, 1208, 1215, 1216, 82d Cong. 2d Sess.
15. See Ch. 24. infra, for a discussion of the time to report a 
        resolution of inquiry.
---------------------------------------------------------------------------

    The adverse report of the Committee on Foreign Affairs, the letter 
from the Assistant Secretary of State for the Secretary stating the 
position of the Department of State that sufficient information had 
been supplied, and communiques relating to the subject matter of the 
resolution were included in the Record.(16) On Mar. 5, 
1952,(17) a letter, dated Mar. 4, 1952, from the Secretary 
of State, Dean Acheson, citing the President's negative response to a 
question about such agreements at a press conference on Feb. 20, 1952, 
was laid before the House, referred to the Committee on Foreign 
Affairs, and ordered printed.
---------------------------------------------------------------------------
16. See 98 Cong. Rec. 1205, 1206, 82d Cong. 2d Sess., for these 
        materials.
17. 98 Cong. Rec. 1892, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

Mexican-American Relations

Sec. 2.14 The House laid on the table a privileged resolution of 
    inquiry directing the Secretary of State to furnish information 
    relating to Mexican-American relations.

    On Feb. 7, 1937,(18) the House by voice vote tabled a 
privileged

---------------------------------------------------------------------------
18. 84 Cong. Rec. 1181, 1182, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2314]]

resolution of inquiry reported adversely by the Committee on Foreign 
Affairs, House Resolution 78, directing the Secretary of State to 
transmit, within 15 days from receipt of the resolution answers to 
questions relating to whether: (1) Mexico bartered oil from 
expropriated American and British properties for German, Italian, and 
Japanese products; (2) American investments in Mexico were eliminated; 
(3) reported loss of American investments led to reductions in 
American-Mexican trade; (4) Mexico appointed a Minister to Berlin and 
Japanese experts participated in Mexican projects; (5) State Department 
officials sought to obtain adequate compensation for holders of 
American bonds in Mexican national railroads expropriated in 1937; (6) 
the State Department has evidence that Germany, Italy, and Japan had an 
agreement to absorb Mexican oil prior to expropriation of American and 
British properties; (7) Mexican real wages fell since 1937; (8) the 
Ambassador informed the State Department that railroads and oil 
properties would be expropriated or whether news of that development 
was a surprise; (9) the State Department possessed a full record of 
speeches and public remarks as well as reports to the Secretary of 
State relating to Mexican expropriation of American properties and 
Mexico's relations with Germany, Italy, and Japan (the resolution 
sought the full text of these documents); (10) the Department of State 
was satisfied that the American Ambassador in Mexico City took steps to 
protect remaining American investments; and (11) the Department of 
State agreed to expropriation of American-owned property in Mexico.

    Speaker William B. Bankhead, of Alabama, ruled out of order a 
question of consideration raised after the motion to table was made but 
prior to the vote.

Removal of German Industrial Plants

Sec. 2.15 The House agreed to a privileged resolution requesting the 
    Secretary of State and Secretary of Defense to transmit information 
    relating to the dismantlement and removal of industrial plants from 
    post-war Germany. The Under Secretary of State responded for the 
    Department of State and Department of Defense.

    On Dec. 18, 1947,(19) the House by voice vote approved a 
privi

---------------------------------------------------------------------------
19. 93 Cong. Rec. 11636, 11640, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2315]]

leged resolution of inquiry reported favorably from the Committee on 
Foreign Affairs, House Resolution 365, requesting the Secretary of 
State and the Secretary of Defense to transmit information relating to: 
(1) the number of plants in Germany which were dismantled and removed 
from that country; (2) the character and capacity of plants removed and 
remaining to be dismantled; (3) the number of remaining plants which 
could be converted to peacetime production and were capable of 
contributing to German export trade; (4) the basis for the 
determination that a particular plant was surplus; (5) the amount of 
material and goods, and their cost needed to be sent from the United 
States to compensate for production of plants removed and scheduled for 
dismantling; (6) whether plants were removed from any of the German 
zones beyond the limits prescribed or contemplated in the Yalta 
agreement; (7) whether essential agricultural produce was removed from 
any zone for delivery outside Germany; (8) the extent of removal of 
harbor facilities and transportation equipment; and (9) whether the 
U.S. government had taken appropriate steps to delay temporarily 
further dismantling of plants in western Germany, in order to permit 
further congressional study to determine whether transfers prejudice a 
general recovery program for western Europe.

    A preamble was added by committee amendment, following voice vote 
approval of the resolution as amended.
    On Jan. 26, 1948,(20) a letter, dated Jan. 24, 1948, 
from the Under Secretary of State, Robert A. Lovett, responding for the 
Department of State and Department of Defense to the resolution of 
inquiry was laid before the House and referred to the Committee on 
Foreign Affairs.
---------------------------------------------------------------------------
20. 94 Cong. Rec. 541, 542, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

American Policy on Formosa

Sec. 2.16 The House tabled a privileged resolution of inquiry 
    requesting the President to furnish information about American 
    policy on Formosa.

    On Feb. 9, 1950,1 the House by voice vote agreed to 
table a privileged resolution of inquiry reported adversely by the 
Committee on Foreign Affairs, House Resolution 452, requesting the 
President, if not incompatible with the public interest, to furnish

---------------------------------------------------------------------------
 1. 96 Cong. Rec. 175.3--55, 81st Cong. 2d Sess.
---------------------------------------------------------------------------

[[Page 2316]]

within 15 days after adoption of the resolution, full and complete 
answers to questions relating to the President's statement of Jan. 5, 
1950, on policy toward Formosa and the current situation in China and 
the Far East.(2)

--------------------------------------------------------------------------
 2. See Ch. 24, infra, for a discussion of the time to report back a 
        resolution of inquiry.
---------------------------------------------------------------------------

Domestic Affairs--Evidence of Criminal Activity

Sec. 2.17 The House discharged a committee from further consideration 
    and laid on the table a privileged resolution of inquiry directing 
    the Acting Attorney General to furnish all documents and items of 
    evidence in the custody of the Watergate Special Prosecutor as of 
    Oct. 20, 1973.

    On Nov. 1, 1973,(3) the House discharged the Committee 
on the Judiciary from further consideration and tabled House Resolution 
634, directing the Acting Attorney General, to the extent not 
incompatible with the public interest, to furnish, not later than 15 
days after adoption of the resolution, true copies of all papers, 
documents, recordings, memoranda, and items of evidence in the custody 
of the Special Prosecutor and Director of the Special Prosecution 
Force, as of noon, Saturday, Oct. 20, 1973.(4)
---------------------------------------------------------------------------
 3. 119 Cong. Rec. 35644, 93d Cong. 1st Sess.
 4. H. Res. 634 read as follows:
            Resolved, That the Acting Attorney General of the United 
        States, to the extent not incompatible with the public 
        interest, is directed to furnish to the House of 
        Representatives not later than fifteen days following the 
        adoption of this resolution, true copies of all papers, 
        documents, recordings, memorandums, and items of evidence in 
        the custody of the Special Prosecutor and Director, Watergate 
        Special Prosecution Force, Archibald Cox as of noon, Saturday, 
        October 20, 1973.
---------------------------------------------------------------------------

    Parliamentarian's Note: President Richard M. Nixon dismissed the 
Special Prosecutor, Archibald Cox, on the evening of Oct. 20, 1973.
    When the Acting Attorney General subsequently turned the documents 
over to a federal court, thus assuring their preservation, the Member 
who introduced this resolution of inquiry, Mr. Paul M. McCloskey, of 
California, decided not to proceed further with it and sought and 
obtained unanimous consent to discharge the committee from further 
consideration and to table the resolution.

Sec. 2.18 The House discharged a committee from further consideration 
    and laid on the table a privileged resolution

[[Page 2317]]

    of inquiry directing the Attorney General to furnish all factual 
    information as to whether the Vice President may have accepted 
    bribes.

    On Oct. 10, 1973,(5) the House, pursuant to the 
unanimous-consent request of Mr. Paul Findley, of Illinois, discharged 
the Committee on the Judiciary from further consideration and tabled 
House Resolution 572, a privileged resolution of inquiry directing the 
Attorney General to inform the House of all facts within the knowledge 
of the Department of Justice relating to whether the Vice President, 
Spiro T. Agnew, accepted bribes or received consideration for services 
rendered or promised in the performance of his official 
responsibilities as a public official in Maryland or as Vice President 
or failed to declare his income for tax purposes.(6)
---------------------------------------------------------------------------
 5. 119 Cong. Rec. 33687, 93d Cong. 1st Sess.
 6. H. Res. 572 read as follows:
            Resolved, That the Attorney General of the United States 
        be, and he is hereby directed to inform the House of all the 
        facts within the knowledge of the Department of Justice that 
        the Vice President of the United States, Spiro T. Agnew, 
        accepted bribes or received consideration for services rendered 
        or promised in the performance of his official responsibilities 
        as a public official in the State of Maryland or Vice President 
        of the United States, or failed to declare his income for tax 
        purposes.
---------------------------------------------------------------------------

    Parliamentarian's Note: Vice President Agnew resigned his office, 
and entered a plea of nolo contendere to a count of failure to report 
certain income, on Oct. 10, 1973.

Sec. 2.19 The House laid on the table a privileged resolution of 
    inquiry directing the Attorney General to transmit information 
    relating to the kidnapping of David Levinson and Robert Minor.

    On May 16, 1935,(7) the House by a vote of yeas 276, to 
nays 40, tabled a privileged resolution of inquiry reported by the 
Committee on the Judiciary, House Resolution 219, directing the 
Attorney General to transmit to the House at the earliest practical 
moment: (1) copies of all official information on file in the 
Department of Justice or in possession of its agents concerning the 
kidnapping of David Levinson and Robert Minor, in Gallup, New Mexico, 
on May 2, 1935; (2) information as to whether a person or persons had 
been apprehended or taken into custody and charged with kidnapping and, 
if not, whether

---------------------------------------------------------------------------
 7. 79 Cong. Rec. 7687, 7688, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2318]]

the Department of Justice had instituted and prosecuted an 
investigation with a view to bringing to justice those guilty of 
violating 18 USC Sec. 408a, as amended by Public Law No. 232 of the 73d 
Congress (May 18, 1934); (3) name or names of all persons questioned in 
connection with this investigation and statements made by them; (4) 
information as to whether the crime was completed within Navajo Indian 
Reservation, western New Mexico; and (5) whether the reservation was 
under the jurisdiction of the U.S. government and whether the Attorney 
General had authority to prosecute crimes committed within the 
reservation.

    Speaker Joseph W. Byrns, of Tennessee, overruled a point of order 
raised against the resolution because it sought information (testimony 
of witnesses given to New Mexico law enforcement officials) that was 
not in the possession of the Attorney General.

Security Files on Government Officials

Sec. 2.20 The House agreed to a resolution of inquiry directing the 
    Secretary of Commerce to transmit a letter from the Director of the 
    Federal Bureau of Investigation to the Secretary regarding the 
    Director of the National Bureau of Standards.

    On Apr. 22, 1948,(8) the House by a roll call vote of 
yeas 302 to nays 29, approved a privileged resolution of inquiry, House 
Resolution 522, reported favorably by the Committee on Interstate and 
Foreign Commerce, directing the Secretary of Commerce to transmit 
forthwith the full text of a letter dated May 15, 1947, written by the 
Director of the Federal Bureau of Investigation and addressed to the 
Secretary, relating to Dr. Edward U. Condon, Director of the National 
Bureau of Standards, about whom allegations of disloyal conduct had 
been made.(9)
---------------------------------------------------------------------------
 8. 94 Cong. Rec. 4777, 4786, 80th Cong. 2d Sess.
 9. See 94 Cong. Rec. A2458-A2461, 80th Cong. 2d Sess., Apr. 22, 1948, 
        for letters from former Attorney General Robert H. Jackson and 
        Special Assistant to the Attorney General Peyton Ford and a 
        legal memorandum relating to this incident and the broader 
        issue of executive privilege.
---------------------------------------------------------------------------

    On Apr. 26, 1948,(10) a communication dated Apr. 23, 
1948, from the Acting Secretary of Commerce, William C. Foster, 
refusing to transmit the 1947 letter and citing a directive of 
President Harry S. Truman dated Mar. 13, 1948, ordering all executive

---------------------------------------------------------------------------
10. 94 Cong. Rec. 4879, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

[[Page 2319]]

branch officials to decline to disclose Loyalty Board files to any 
person or agency was referred to the Committee on Interstate and 
Foreign Commerce and ordered to be printed.(11)

--------------------------------------------------------------------------
11. See Sec. 5.3, infra, for a discussion of House approval, and the 
        text, of H.J. Res. 342, directing officers and employees of the 
        executive branch to provide information to Congress. See also 
        the minority report to H. Rept. No. 1595, pp. 8-10 which 
        accompanies the joint resolution and contains a Mar. 15, 1948, 
        memorandum from President Truman stating precedents of 
        Presidential refusals to respond to requests for information.
---------------------------------------------------------------------------

Fish Imports

Sec. 2.21 The House agreed to a resolution requesting the Secretary of 
    State to study the effect of increased imports on the domestic 
    fishing industry. The Assistant Secretary responded for the 
    Secretary.

    On Apr. 4, 1949,(12) the House by voice vote approved a 
resolution reported favorably by the Committee on Merchant Marine and 
Fisheries and called from the Consent Calendar.(13) House 
Resolution 147 requested the Secretary of State to make an immediate 
study on the effect on the domestic fishing industry of increasing 
imports of fresh and frozen fish, especially ground fish fillets, into 
the United States; and, with the advice of and in coordination with 
appropriate executive departments and independent agencies of 
government, to recommend means by which the American fishing industry 
may survive; and to report not later than May 15, 1949.
---------------------------------------------------------------------------
12. 95 Cong. Rec. 3820-22, 81st Cong. 1st Sess.
13. Parliamentarian's Note: This measure would have been subject to 
        points of order that it was not privileged if the committee 
        chairman had sought to call it up as privileged business 
        because it required an investigation (see 3 Hinds' Precedents 
        Sec. Sec. 1872-74 and 6 Cannon's Precedents Sec. Sec. 422, 427, 
        429, and 432) and contained a preamble (see 3 Hinds' Precedents 
        Sec. Sec. 1877, 1878 and 6 Cannon's Precedents Sec. Sec. 422, 
        427). See also Rule XXII clause 5, House Rules and Manual 
        Sec. 857 (1973).
---------------------------------------------------------------------------

    The resolution contained a preamble.
    On May 17, 1949,(14) a letter and report of findings 
from the Assistant Secretary of State, Ernest A. Gross, responding for 
the Secretary and Department to the resolution of inquiry, was laid 
before the House, referred to the Committee on Merchant Marine

---------------------------------------------------------------------------
14. 95 Cong. Rec. 6372, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2320]]

and Fisheries, and ordered printed.

Foreign Sales of Short Supply Goods

Sec. 2.22 The House agreed to a privileged resolution of inquiry 
    requesting the Secretary of Commerce to furnish information 
    regarding sales to foreign countries of supplies, shortages of 
    which might endanger national defense and security.

    On Dec. 5, 1947,(15) the House by voice vote approved a 
privileged resolution of inquiry, House Resolution 366, reported 
favorably and unanimously by the Committee on Interstate and Foreign 
Commerce, with a committee amendment requesting (16) the 
Secretary of Commerce to furnish the House with information concerning 
shipments of heavy machinery, farm and railroad equipment, motor 
vehicles, metals and metal products, coal, petroleum and petroleum 
products, building materials, meats and grains, and all other supplies 
shortages of which might endanger national defense or security, which 
were made to each foreign country since Jan. 1, 1947, including the 
most recent date for which figures were obtainable; names of firms or 
individuals making these sales, dates orders were received and supplies 
were delivered, and the nature of payments made in return for supplies; 
and information revealing the extent of unfilled orders for the above-
listed supplies which each foreign country has on record with firms or 
individuals in the United States as of the date of adoption of the 
resolution.
---------------------------------------------------------------------------
15. 93 Cong. Rec. 11075, 11076, 80th Cong. 1st Sess.
16. Parliamentarian's Note: To ``request'' the Secretary of Commerce to 
        furnish information deviates from the standard practice which 
        is to ``request'' the President and ``direct'' a head of an 
        executive department to furnish information. See 3 Hinds' 
        Precedents Sec. Sec. 1856, 1895 and Rule XXII clause 5, House 
        Rules and Manual Sec. 856 (1973).
---------------------------------------------------------------------------

    On Jan. 8, 1948,(17) a letter in response dated Jan. 7, 
1948, accompanied by reports of study findings from the Acting 
Secretary of Commerce, William C. Foster, were laid before the House 
and referred to the Committee on Interstate and Foreign Commerce.
---------------------------------------------------------------------------
17. 94 Cong. Rec. 39, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

Domestic Energy Sources

Sec. 2.23 The House agreed to a resolution of inquiry requesting the 
    Secretary of the Interior to furnish information

[[Page 2321]]

    relating to domestic availability of petroleum and coal. The 
    Secretary responded by providing reports.

    On Feb. 16, 1948,(18) the House by voice vote approved a 
resolution of inquiry (H. Res. 385) reported favorably by the Committee 
on Public Lands and called from the Consent Calendar requesting the 
Secretary of the Interior to furnish the House full information in his 
possession concerning domestic availability of fuel oil, gasoline, 
petroleum products, and coal, as well as information on the steps the 
government should take to make the proper and necessary supply 
available.
---------------------------------------------------------------------------
18. 94 Cong. Rec. 1328, 1329, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Apr. 30, 1948,(19) a letter dated Apr. 30, 1948, and 
reports from Secretary of the Interior J. A. Krug, responding to the 
resolution of inquiry, were laid before the House and referred to the 
Committee on Public Lands.
---------------------------------------------------------------------------
19. Id. at p. 5163.
---------------------------------------------------------------------------

Busing

Sec. 2.24 After discharging a committee from further consideration of 
    the measure, the House agreed to a resolution of inquiry directing 
    the Secretary of Health, Education, and Welfare to furnish a list 
    of public school systems which receive federal funds and engage in 
    busing of schoolchildren to achieve racial balance, and any 
    departmental rules and regulations regarding busing. The Secretary 
    responded that he was unable to provide the information.

    On Aug. 2, 1971,(20) the House by a roll call vote of 
yeas 252 to nays 129 discharged the Committee on Education and Labor 
from further consideration and then by a roll call vote of yeas 351 to 
nays 36, agreed to House Resolution 539, directing the Secretary of 
Health, Education, and Welfare, to the extent not incompatible with the 
public interest, to furnish to the House, not later than 60 days after 
adoption of the resolution, any documents containing a list of public 
school systems which, during the period between Aug. 1, 1971 through 
June 30, 1972, would be receiving federal funds and busing 
schoolchildren to achieve racial balance; and any documents respecting 
departmental rules and regulations regarding use of federal funds ad

---------------------------------------------------------------------------
20. 117 Cong. Rec. 28863, 28869, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2322]]

ministered by the department for busing.

    On Aug. 3, 1971,(1) the Secretary of Health, Education, 
and Welfare, Elliot L. Richardson, in a letter of the same date stated 
that because the department did not administer busing programs, it did 
not have a reason either to compile a list of school districts which 
bus schoolchildren or to draft rules or regulations respecting busing. 
He enclosed a memorandum from the Associate Commissioner, Equal 
Educational Opportunity, Office of Education, regarding the policy on 
funding transportation costs for the Emergency School Assistance 
Program, and a proposed amendment to a pending bill, H.R. 2266, the 
Emergency School Aid Act.
---------------------------------------------------------------------------
 1. 117 Cong. Rec. 29137, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    The letter, memorandum, and proposed amendment were laid before the 
House and referred to the Committee on Education and Labor.

Postal Temporaries

Sec. 2.25 The House laid on the table a privileged resolution of 
    inquiry directing the Postmaster General to furnish the names of 
    persons employed temporarily during the summer of 1965.

    On Sept. 16, 1965,(2) the House by a roll call vote of 
yeas 185 to nays 181, tabled a privileged resolution of inquiry 
reported adversely by the Committee on Post Office and Civil Service, 
House Resolution 574, directing the Postmaster General to furnish to 
the House the names of all persons employed by the Post Office 
Department as temporary employees at any time during the period 
beginning on May 23, 1965, and ending on Sept. 6, 1965.(3)
---------------------------------------------------------------------------
 2. 111 Cong. Rec. 24030, 24034, 89th Cong. 1st Sess.
 3. See Ch. 24, infra, for a discussion of the privileged status of 
        resolutions of inquiry.
---------------------------------------------------------------------------

Information Furnished to Committee

Sec. 2.26 Two resolutions of inquiry directing the Secretary of State 
    to furnish information to a committee rather than to the House were 
    called up and considered as privileged business.

    On Oct. 20, 1971,(4) two identically worded resolutions 
of inquiry, House Resolution 632 and House Resolution 638, directing 
the Secretary of State to furnish information to a committee relating 
to the South Vietnamese elec

---------------------------------------------------------------------------
 4. 117 Cong. Rec. 37055, 37057, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2323]]

tion of Oct. 3, 1971,(5) were called up and considered as 
privileged business. The privileged status was not questioned when 
these resolutions were called up.(6)

---------------------------------------------------------------------------
 5. See Sec. 2.4, supra, for the content of these resolutions.
 6. See Sec. 2.4, supra, for the disposition of the resolutions.
---------------------------------------------------------------------------

    Parliamentarian's Note: The privileged status of these resolutions 
could have been questioned because they directed the Secretary to 
furnish information to the committee rather than directly to the House. 
The only precedent on this point is 3 Hinds' Precedents Sec. 1860, in 
which Speaker Joseph G. Cannon, of Illinois, ruled that a resolution 
authorizing a committee to request information from the Postmaster 
General and requesting him to send certain papers to the committee was 
privileged as a resolution of inquiry.



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                 B. INQUIRIES AND THE EXECUTIVE BRANCH
 
Sec. 3. Executive Branch Refusals to Provide Information

    The authority of Congress to obtain information needed to legislate 
effectively and oversee other branches has often been challenged by the 
efforts of the executive branch to withhold material which that branch 
considers confidential, including information relating to military 
affairs and foreign policy. During the period prior to the 
``Watergate'' investigations of 1973 and 1974, case law on these two 
potentially conflicting prerogatives developed 
independently.(7) Generally, such a conflict was averted, 
not because the executive branch complied with all requests and 
subpenas (8) but because the Congress

---------------------------------------------------------------------------
 7. See, for example, Kilbourn v Thompson, 103 U.S. 168 (1881), McGrain 
        v Daugherty, 273 U.S. 135 (1927), Sinclair v United States, 279 
        U.S. 263 (1929), Watkins v United States, 354 U.S. 178 (1957), 
        Barenblatt v United States, 360 U.S. 109 (1959), for judicial 
        recognition of legislative authority to obtain information; and 
        United States v Burr, 25 F Cas. 187 (No. 14, 694) (cc Va. 
        1807); United States v Reynolds, 345 U.S. 1 (1953); and McPhaul 
        v United States, 364 U.S. 372, 382-383 (1960), for judicial 
        recognition of executive authority to withhold information.
 8. Commenting on a survey conducted by the Senate Subcommittee on 
        Separation of Powers for the period 1964 to 1973, Chairman Sam 
        J. Ervin, Jr., of North Carolina, stated that the executive 
        branch on 284 occasions refused to provide testimony or 
        documents requested by House or Senate committees or 
        subcommittees. These refusals were in response to oral or 
        written requests, as distinguished from subpenas. See Senate 
        Committee on the Judiciary, Subcommittee on Separation of 
        Powers, Refusals by the Executive Branch to Provide Information 
        to the Congress 1964-1973, 93d Cong. 2d Sess. (1974), Foreword.
            The only constitutional requirement relating the 
        President's duty to provide information to Congress is article 
        II, Sec. 3, which provides, ``He [the President] shall from 
        time to time give to the Congress Information of the State of 
        the Union, and recommend to their consideration such Measures 
        as he shall judge necessary and expedient. . . .''
--------------------------------------------------------------------------

[[Page 2324]]

when rebuffed did not exhaust all procedures to enforce its requests. 
The Watergate crisis, of course, brought the law on the subject into 
sharper focus.(9)

---------------------------------------------------------------------------
 9. See Sec. 4, infra, for a discussion of a suit against the President 
        to enforce a Senate subpena.
---------------------------------------------------------------------------

    Refusals of the executive branch to provide information to the 
Congress, while representing only a small portion of executive 
responses to requests for information, have frequently occurred. Such 
refusals have generally been in response to informal requests for 
information as distinguished from a subpena. Such refusals to provide 
information to the Congress have been based on the following grounds: 
(10) (1) executive privilege, (2) alleged prerogative of 
office, (3) law or pretext of law, (4) classified information, (5) 
prejudice to litigation or investigation, (6) ``inappropriateness,'' 
and, (7) other reasons, including previous submission of information, 
personal inconvenience, possible ``adverse reaction,'' and claims that 
compliance would ``hamper the agency and create adverse publicity,'' 
``create public concern,'' or ``set a precedent.''
---------------------------------------------------------------------------
10. These categories appear in a document of the Senate Committee on 
        the Judiciary, Subcommittee on Separation of Powers, Refusals 
        by the Executive Branch to Provide Information to the Congress 
        1964-1973, 93d Cong. 2d Sess. (1974) pp. 4-9.
---------------------------------------------------------------------------

    The following are examples of instances in which the President or 
executive officers have refused to provide information to the Congress.
    Examples of refusals by the President or executive branch officers 
during the administration of President Franklin D. Roosevelt include 
the following: (11)
---------------------------------------------------------------------------
11. This list, which is not exhaustive but merely illustrative, is 
        taken from a memorandum from Attorney General Herbert Brownell 
        to President Eisenhower and reprinted in Senate Committee on 
        Government Operations, Special Senate Investigation on Charges 
        and Countercharges Involving: Secretary of the Army Robert T. 
        Stevens, John G. Adams, H. Struve Hensel and Senator Joe 
        McCarthy, Roy M. Cohn, and Francis P. Carr, 83d Cong. 2d Sess., 
        hearing of May 17, 1954, pp. 1269-1275.
---------------------------------------------------------------------------

        --Federal Bureau of Investigation records and reports were 
    refused to

[[Page 2325]]

    congressional committees, in the public interest (40 Opinions of 
    the Attorney General [hereinafter cited as Op. A.G.] No. 8, Apr. 
    30, 1941).
        --The Director of the Federal Bureau of Investigation refused 
    to give testimony or to exhibit a copy of the President's directive 
    requiring him, in the interests of national security, to refrain 
    from testifying or from disclosing the contents of the Bureau's 
    reports and activities (Hearings, Vol. 2, House, 78th Cong. Select 
    Committee to Investigate the Federal Communications Commission 
    [1944] p. 2337).
        --Communications between the President and the heads of 
    departments were held to be confidential and privileged and not 
    subject to inquiry by a committee of one of the Houses of Congress 
    (Letter dated Jan. 22, 1944, signed Francis Biddle, Attorney 
    General, to Select Committee, etc.).
        --The Director of the Bureau of the Budget refused to testify 
    and to produce the bureau's files, pursuant to subpoena which had 
    been served upon him, because the President had instructed him not 
    to make public the records of the bureau due to their confidential 
    nature. Public interest was again invoked to prevent disclosure 
    (Reliance placed on Attorney General's Opinion in 40 Op. A.G. No. 
    8, Apr. 30, 1941).
        --The Secretaries of War and Navy were directed not to deliver 
    documents which the committee had requested, on grounds of public 
    interest. The Secretaries, in their own judgment, refused 
    permission to Army and Navy officers to appear and testify because 
    they felt that it would be contrary to the public interests 
    (Hearings, Select Committee to Investigate the Federal 
    Communications Commission, Vol. 1, pp. 46, 48-68).

    The following examples arose during the administration of President 
Harry S. Truman: (12)
---------------------------------------------------------------------------
12. Id.
---------------------------------------------------------------------------

        --An FBI letter-report on Dr. Edward U. Condon, Director of 
    National Bureau of Standards, was refused by Secretary of Commerce 
    (Mar. 4, 1948).
        --The President issued a directive forbidding all Executive 
    departments and agencies to furnish information or reports 
    concerning the loyalty of their employees to any court or committee 
    of Congress, unless the President approves (Mar. 15, 1948).
        --Dr. John R. Steelman, Confidential Adviser to the President, 
    refused to appear before the Committee on Education and Labor of 
    the House, following the service of two subpoenas upon him. The 
    President directed him not to appear (March 1948).
        --The Attorney General wrote Senator Ferguson, Chairman of the 
    Senate Investigations Subcommittee, that he would not furnish 
    letters, memoranda, and other notices which the Justice Department 
    had furnished to other government agencies concerning W. W. 
    Remington (Aug. 5, 1948).
        --Senate Resolution 231 having directed a Senate subcommittee 
    to procure State Department loyalty files, President Truman refused 
    to permit such files to be furnished, following vigorous opposition 
    by J. Edgar Hoover to the request (Feb. 22, 1950).

        --The Attorney General and the Director of the FBI appeared 
    before a

[[Page 2326]]

    Senate subcommittee. Mr. Hoover's historic statement of his reasons 
    for refusing to furnish raw files was approved by the Attorney 
    General (Mar. 27, 1950).
        --General Bradley refused to divulge conversations between the 
    President and his advisers to the combined Senate Foreign Relations 
    and Armed Services Committees (May 16, 1951).
        --President Truman directed the Secretary of State to refuse to 
    the Senate Internal Security Subcommittee the reports and views of 
    foreign service officers (Jan. 31, 1952).
        --Acting Attorney General Perlman laid down a procedure for 
    complying with requests for inspection of Department of Justice 
    files by the Committee on the Judiciary. Requests on open cases 
    would not be honored. As to closed cases, files would be made 
    available. All FBI reports and confidential information would not 
    be made available. As to personnel files, they are never disclosed 
    (Apr. 22, 1952).
        --President Truman instructed the Secretary of State to 
    withhold from a Senate Appropriations Subcommittee files on loyalty 
    and security investigations of employees--such policy to apply to 
    all Executive agencies. The names of individuals determined to be 
    security risks would not be divulged. The voting record of members 
    of an agency loyalty board would not be divulged (Apr. 3, 1952).

    During the administration of President Dwight D. Eisenhower, the 
following instances arose: (13)
---------------------------------------------------------------------------
13. This list, which is merely illustrative, was compiled from 
        instances cited in Kramer, Robert and Marcuse, Herman, 
        Executive Privilege--A Study of the Period 1953-1960, which 
        contained responses to an Apr. 2, 1957, letter from the 
        Chairman of the Senate Subcommittee on Constitutional Rights 
        requesting agencies and departments to report instances of 
        refusals to provide information since May 17, 1954. See also 
        House Subcommittee on Government Information of Committee on 
        Government Operations, Availability of Information from Federal 
        Agencies (the First Five Years and Progress of a Study, Aug. 
        1959-July 1960), H. Rept. No. 2084, 86th Cong. 2d Sess., 5-35 
        (1960), for a chart listing refusals.
---------------------------------------------------------------------------

        --In a letter dated May 17, 1954, President Eisenhower ordered 
    Secretary of Defense Wilson to instruct Department of Defense 
    employees not to testify or produce documents about any executive 
    branch communications or conversations at the Army-McCarthy 
    hearings before the Senate Subcommittee on Permanent 
    Investigations.
        --On July 18, 1955, the General Manager of the Atomic Energy 
    Commission refused to provide the Senate Subcommittee on Antitrust 
    and Monopoly with papers relating to the contract between the 
    Commission and the Mississippi Valley Generating Company (the 
    Dixon-Yates contract) for construction of an electrical powerplant 
    and sale of the generated power to the United States.
        --In letters dated July 21, and July 26, 1955, Presidential 
    Assistant Sherman Adams declined an invitation to appear before the 
    Senate Subcommittee on Antitrust and Monopoly

[[Page 2327]]

    to testify about his request for a postponement of the June 13, 
    1955, Securities and Exchange Commission hearing on a contract 
    between the Atomic Energy Commission and the Mississippi Valley 
    Generating Company (the Dixon-Yates contract) for construction of 
    an electrical powerplant and sale of the generated power to the 
    United States.
        --On Dec. 5, 1955, before the Senate Subcommittee on Antitrust 
    and Monopoly, the Chairman of the Atomic Energy Commission refused 
    to answer questions relating to executive branch discussions about 
    the contract between the Commission and the Mississippi Valley 
    Generating Company (the Dixon-Yates contract) for construction of 
    an electrical powerplant and sale of the generated power to the 
    United States.
        --The Administrator of the Small Business Administration, who 
    had received a subpena duces tecum, refused to provide a 
    subcommittee of the Senate Committee on Post Office and Civil 
    Service with security files about a named individual on the ground 
    that President Eisenhower's Executive Order 10450 required 
    confidential preservation of employee security files.
        --The International Cooperation Administration refused to 
    provide the General Accounting Office with evaluation reports on 
    American foreign assistance programs to the following countries: 
    Taiwan and Pakistan, 1957; India, Sept. 1959; Guatemala, Mar. 1960; 
    Bolivia, May 1960; Brazil, May 1960; Laos, Aug. 1959; Vietnam, 
    1959.
        --On Apr. 13, 1957, the Department of Defense refused to 
    provide the Chairman of the House Subcommittee on Public 
    Information with investigative memoranda and a report of 
    conversations between the Department and newsmen.
        --On Jan. 12, 1957, the Department of the Army refused to 
    provide the Chairman of the House Subcommittee on Public 
    Information with an investigative file compiled in connection with 
    charges of disloyalty and subversion at the Signal Corps 
    Intelligence Agency.
        --In 1956, the Chairman of the Civil Service Commission, who 
    had received a subpena duces tecum, refused to provide the Senate 
    Committee on Post Office and Civil Service with some but not all 
    Federal Employees' Security Program files, documents, and records 
    about three named individuals.
        --On Nov. 12, 1956, the Department of Defense refused to 
    provide the Chairman of the House Subcommittee on Public 
    Information with a memorandum of the Under Secretary of the Navy 
    relating to a discussion with an Assistant Secretary of Defense 
    about the Department's responsibility to safeguard 
    intradepartmental communications of an advisory and preliminary 
    nature.

        --On July 27 and Dec. 26, 1956, the Office of Defense 
    Mobilization refused to provide the House Subcommittee on Military 
    Operations with copies of command post exercise proclamations 
    issued during Operation Alert 1956.
        --In July 1956, the Department of the Army refused to provide 
    the Chairman of the House Armed Services Committee with 
    intradepartmental communications pertaining to an officer's status. 
    A complete statement of the basis for the final decision in the 
    matter was submitted.

[[Page 2328]]

        --On Feb. 20, 1956, the Secretaries of Defense, State, 
    Commerce, and the Director of the International Cooperation 
    Administration refused to provide the Senate Permanent 
    Investigations Subcommittee with information relating to East-West 
    trade controls and instructed employees who might be called to 
    testify on this matter to refuse to testify.
        --On Feb. 3, 1956, the Department of the Interior refused to 
    provide the House Subcommittee on Antitrust and Monopoly with 
    portions of files of the National Petroleum Council which had not 
    been made available to the legislative branch under a long 
    established executive branch policy, as well as documents which had 
    been received by the Council only on the condition that they be 
    kept confidential.
        --On Sept. 2-6, 1955, the Department of the Army denied 
    requests of the Committee on House Appropriations for Inspector 
    General's reports and Auditor General's reports. Requested 
    summaries of all actions taken in connection with the contracts 
    under investigation were provided.
        --On Sept. 16, 1955, the Department of the Air Force refused to 
    provide the Chairman of the Senate Preparedness Investigating 
    Subcommittee with material derived from an Inspector General's 
    report.
        --On Feb. 2, 1956, the Department of the Air Force refused to 
    provide the House Committee on Appropriations with Inspector 
    General's reports and Auditor General's reports.
        --On Jan. 25, 1957, the Department of the Air Force refused to 
    provide the Chairman of the House Committee on Post Office and 
    Civil Service with a report of the Inspector General concerning 
    employment conditions in Okinawa. A summary of the findings of the 
    report was submitted.
        --On Jan. 17, 1956, the Department of the Air Force refused to 
    provide the Chairman of the Senate Committee on Interstate and 
    Foreign Commerce with information concerning the discharge of a 
    serviceman.
        --On Oct. 13, 1955, the Civil Service Commission denied a 
    request from the Clerk of the House Committee on Un-American 
    Activities to review the Commission's files personally.
        --In June of 1955, the Department of State refused to disclose 
    to a subcommittee of the Senate Committee on Post Office and Civil 
    Service the personnel and security file of the Federal Employees' 
    Security Program of a named individual.
        --In May of 1955, the Atomic Energy Commission refused to 
    provide the Joint Committee on Atomic Energy with copies of certain 
    National Security Council documents which had been mentioned in a 
    memorandum from the commission to the committee regarding a 
    nuclear-powered merchant ship. A statement as to relevant 
    presidentially approved policies contained in those documents was 
    supplied.
        --On May 12, 1955, the Department of the Interior refused to 
    provide the House Subcommittee on Public Works and Resources with 
    exchanges of correspondence between departmental officials 
    regarding a departmental order which was submitted.
        --On May 5, 1955, the Department of the Interior refused to 
    provide the Subcommittee on Public Works and Resources with 
    surnamed (initialed)

[[Page 2329]]

    file copies of an amendment to 43 C.F.R. Part 244.
        --On Feb. 8, 1955, the Department of the Army refused to 
    provide the Chairman of the Senate Permanent Investigations 
    Subcommittee with the Inspector General's report on Irving Peress, 
    but did provide a detailed summary of all actions taken by the Army 
    in the Peress case.
        --On Sept. 6, 1954, the Department of the Army denied a request 
    of the Chairman of the Senate Internal Security Subcommittee for a 
    document entitled ``Research Material for Political Intelligence 
    Problem.''
        --On July 13, 1954, and Mar. 3, 1955, the Bureau of the Budget 
    (14) denied requests for information made by the Senate 
    Internal Security Subcommittee.
---------------------------------------------------------------------------
14. This name has been changed to the Office of Management and Budget.
---------------------------------------------------------------------------

        --In 1956, the Department of State refused to provide the 
    Senate Permanent Subcommittee on Investigations with material 
    relating to East-West trade policy. Refusals during the 
    administration of President John F. Kennedy include the following: 
    (15)
---------------------------------------------------------------------------
15. This list is taken from a study compiled by Harold C. Relyea, 
        Analyst, American National Government, Government and General 
        Research Division, Library of Congress, completed on Mar. 26, 
        1973, and reprinted in House Committee on Government 
        Operations, [Unnamed] Subcommittee Hearings on Availability of 
        Information to Congress, 93d Cong. 1st Sess. (1973), 264, 271-
        274. This list with refusals by White House aides excised is 
        reprinted at 119 Cong. Rec 10081, 10082, 93d Cong. 1st Sess., 
        Mar. 28, 1973.
---------------------------------------------------------------------------

        --On or about June 21, 1962, the Food and Drug Administration 
    refused to provide the House Interstate and Foreign Commerce 
    Committee with requested files on the drug MEA-29.
        --On or about June 27, 1962, the State Department refused to 
    provide the Senate Foreign Relations Committee a copy of a working 
    paper on the ``mellowing'' of the Soviet Union.
        --On or about Feb. 7-8, 1963, General Maxwell D. Taylor, during 
    testimony before the House Department of Defense Appropriations 
    Subcommittee, refused to discuss the Bay of Pigs invasion as ``it 
    would result in another highly controversial, divisive public 
    discussion among branches of our Government which would be damaging 
    to all parties concerned.

    The following refusals occurred during the administration of 
President Lyndon B. Johnson: (16)
---------------------------------------------------------------------------
16. See 119 Cong. Rec. 10081, 93d Cong. 1st Sess., Mar. 28, 1973.
---------------------------------------------------------------------------

        --On Apr. 4, 1968, the Department of Defense refused to provide 
    the Senate Foreign Relations Committee a copy of the Command 
    Control Study of the Gulf of Tonkin incident (U.S. Congress. 
    Senate. Committee on the Judiciary. Subcommittee on Separation of 
    Powers. Executive Privilege: The Withholding of Information by the 
    Executive Branch. Hearings, 92d Cong., 1st sess. Washington: U.S. 
    Govt. Print. Off., 1971, p. 39 [hereinafter cited as Executive 
    Privilege]).
        --On or about Sept. 18, 1968, Treasury Under Secretary Joseph 
    W. Barr and presidential Associate Special Counsel W. DeVier 
    Pierson refused to

[[Page 2330]]

    testify before the Senate Judiciary Committee during hearings on 
    the nomination of Associate Justice Abe Fortas to be Chief Justice.

    Refusals during the administration of President Richard M. Nixon 
include the following:(17)
---------------------------------------------------------------------------
17. See 119 Cong. Rec. 10081, 10082, 93d Cong. 1st Sess., Mar. 28, 
        1973.
---------------------------------------------------------------------------

        --On July 26, 1969, the Department of Defense refused to 
    provide the five-year plan for military assistance programs to the 
    Senate Foreign Relations Committee (Executive Privilege, p. 40).
        --On or about Aug. 9, 1969, the Department of Defense refused 
    to provide the Senate Foreign Relations Committee a copy of a 
    defense agreement between the United States and Thailand.
        --On Dec. 20, 1969, the Department of Defense refused to supply 
    the Senate Foreign Relations Committee the ``Pentagon Papers'' 
    (Executive Privilege, pp. 37-38).
        --On or about Mar. 19, 1970, Secretary of Defense Melvin Laird 
    declined an invitation to appear before the Senate Foreign 
    Relations Committee's Disarmament Subcommittee.
        --On Nov. 21, 1970, Attorney General John Mitchell refused to 
    supply certain Federal Bureau of Investigation files to the House 
    Intergovernmental Relations Subcommittee (executive privilege 
    formally invoked).
        --On Mar. 2, 1971, Department of Defense General Counsel J. 
    Fred Buzhardt refused to release an Army investigation report on 
    the 113th Intelligence Group to the Senate Constitutional Rights 
    Subcommittee (Executive Privilege, pp. 402-405).
        --On Apr. 10, 1971, the Department of Defense refused to supply 
    continuous monthly reports on military operations in Southeast Asia 
    to the Senate Foreign Relations Committee (Executive Privilege, p. 
    47).
        --On Apr. 19, 1971, the Department of Defense refused to allow 
    three generals to appear before the Senate Constitutional Rights 
    Subcommittee (Id. p. 402).
        --On June 9, 1971, the Department of Defense refused to release 
    computerized surveillance records to the Senate Constitutional 
    Rights Subcommittee and refused to agree to a subcommittee report 
    on such records (Executive Privilege, p. 398-399).
        --On Aug. 31, 1971, the Department of Defense refused to supply 
    certain foreign military assistance plans to the Senate Foreign 
    Relations Committee (executive privilege formally invoked).
        --On Sept. 21, 1971, White House Director of Communications 
    Herbert G. Klein declined to appear before the Senate 
    Constitutional Rights Subcommittee (U.S. Congress. Senate. 
    Committee on the Judiciary. Subcommittee on Constitutional Rights. 
    Freedom of the Press. Hearings, 92d Cong., 1st and 2d sess. 
    Washington: U.S. Govt. Print. Off., p. 1299).
        --In Dec., 1971, White House Counsel John W. Dean III indicated 
    neither Frederick Malek nor Charles Colson, both of the White 
    House, would appear before the Senate Constitutional Rights 
    Subcommittee during hearings regarding an F.B.I. investigation of 
    C.B.S. reporter Daniel Schorr (Executive Privilege, p. 425).
        --On Feb. 28, 1972, White House Counsel John W. Dean III 
    indicated

[[Page 2331]]

    the unwillingness of presidential aide Henry Kissinger to appear 
    before the Senate Foreign Relations Committee.
        --On Mar. 15, 1972, the White House refused to allow the House 
    Foreign Operations and Government Information Subcommittee to 
    obtain country field submissions for Cambodian foreign assistance 
    for the fiscal years 1972 and 1973 while simultaneously denying the 
    Senate Foreign Relations Committee access to U.S.I.A. program 
    planning papers (executive privilege formally invoked).
        --On Mar. 20, 1972, Frank Shakespeare, Director of the United 
    States Information Agency, refused during testimony before the 
    Senate Foreign Relations Committee to provide copies of U.S.I.A. 
    program planning papers withheld by a formal invocation of 
    executive privilege on March 15.
        --On or about Mar. 20, 1972, the State Department refused to 
    supply the Senate Foreign Relations Committee a copy of 
    ``Negotiations, 1964-1968: The Half-Hearted Search for Peace in 
    Vietnam.''
        --On Apr. 27, 1972, Treasury Secretary John Connally refused to 
    testify before the Joint Economic Committee on the matter of the 
    Emergency Loan Guarantee Board refusing to supply requested records 
    on the Lockheed loan to the General Accounting Office.
        --On Apr. 29, 1972, White House Counsel John W. Dean III 
    indicated the unwillingness of David Young, Special Assistant to 
    the National Security Council, to appear before the House Foreign 
    Operations and Government Information Subcommittee (U.S. Congress. 
    House. Committee on Government Operations. Foreign Operations and 
    Government Information Subcommittee. U.S. Government Information 
    Policies and Practices--Security Classification Problems Involving 
    Section (b)(1) of the Freedom of Information Act. Hearings, 92d 
    Cong., 2d sess. Washington: U.S. Govt. Print. Off., 1972, p. 2453).
        --On or about June 8, 1972, Henry Ramirez, Chairman of the 
    Cabinet Committee on Opportunities for the Spanish Speaking, 
    refused to testify before the House Judiciary Subcommittee on Civil 
    Rights.
        --On July 26, 1972, Department of Defense Assistant General 
    Counsel Benjamin Forman testified before the Senate Foreign 
    Relations Committee before refusal to discuss weather modification 
    activities in Southeast Asia.
        --On Aug. 2, 1972, Henry Ramirez, Chairman of the Cabinet 
    Committee on Opportunities for the Spanish Speaking again refused 
    to testify before the House Judiciary Subcommittee on Civil Rights.
        --On Oct. 6, 1972, Securities and Exchange Commission Chairman 
    William J. Casey refused to turn over the Commission's 
    investigative files on I.T.T. to the House Interstate and Foreign 
    Commerce Committee and disclosed that the files were then in the 
    possession of the Justice Department.
        --On Oct. 12, 1972, presidential campaign manager Clark 
    MacGregor, former Attorney General John Mitchell, White House 
    Counsel John W. Dean III, and former Commerce Secretary Maurice 
    Stans declined to appear before the House Banking and Currency 
    Committee to discuss matters relating to the Watergate bugging 
    case.

[[Page 2332]]

        --On or about Nov. 29, 1972, White House Counsel John Wesley 
    Dean III, presidential assistant John Ehrlichman, presidential 
    special consultant Leonard Garment, and Bradley H. Patterson, 
    Garment's assistant, refused to testify before the House Interior 
    and Insular Affairs Committee during hearings on the takeover of 
    the Bureau of Indian Affairs building in Washington.
        --On Dec. 5, 1972, Housing and Urban Development Secretary 
    George Romney declined to testify before the Joint Economic 
    Committee on the matter of housing subsidies, saying his appearance 
    was inappropriate in view of his announced resignation from office.
        --On or about Dec. 19, 1972, the Department of Defense refused 
    to provide the House Armed Services Committee with documents 
    pertaining to unauthorized bombing raids of interest to the 
    committee as part of their hearings on the firing of Gen. John D. 
    Lavelle.
        --On or about Dec. 23, 1972, presidential assistant Peter 
    Flanigan refused to appear before the House Conservation and 
    Natural Resources Subcommittee to discuss an anti-pollution court 
    case against Armco Steel Company.
        --On or about Jan. 1, 1973, presidential assistant Henry 
    Kissinger and Secretary of State William Rogers declined 
    invitations to appear before both the House Foreign Affairs and 
    Senate Foreign Relations Committees to discuss resumed Vietnam 
    bombings and the Paris peace talks.
        --On Jan. 9, 1973, Admiral Isaac Kidd declined to testify 
    before the Joint Economic Committee regarding his role in action 
    involving the demotion of Gordon Rule, a Navy procurement official 
    who testified earlier before the Committee on Litton Industries' 
    contracts with the Defense Department and the suitability of Roy 
    Ash, a former Litton official, as Director of the Office of 
    Management and Budget.

                         Collateral References
Availability of Information to Congress, Hearings before the House 
    Committee on Government Operations, [Unnamed] Subcommittee, 93d 
    Cong. 1st Sess. (1973).
Berger, Raoul, Executive Privilege: A Constitutional Myth, Harvard 
    University Press, Cambridge, Mass. (1974).
Berger, Raoul, Executive Privilege v Congressional Inquiry, 12 U.C.L.A. 
    L. Rev. 1043-1120, 1286-1364 (1965).
Berger, Raoul, The President, Congress, and the Courts, 83 Yale L.J. 
    1111 (1974).
Bibby, John F., Committee Characteristics and Legislative Oversight of 
    Administration, 10 Midwest Journal of Political Science, p. 78 
    (Feb. 1966).
Bishop, The Executive's Right to Privacy: An Unresolved Constitutional 
    Question, 66 Yale L.J. 477 (1957).
Cappalletti, Mauro, and Golden, C. J., Crown Privilege and Executive 
    Privilege: A British Response to an American Controversy, 2.5 
    Stanford L.J. 836 (1973).
Cooper, Joseph, and Cooper, Ann, The Legislative Veto and the 
    Constitution, 31 Geo. Wash. L. Rev. 467 (1962).
Cox, Archibald, Executive Privilege, 132 U. Pa. L. Rev. 1383 (1974).
Directive on the Need for Maintaining the Confidential Status of 
    Employee Loyalty Records to All Officers and

[[Page 2333]]

    Employees of the Executive Branch of Government, Public Papers of 
    the Presidents, Harry S. Truman, p. 181 (Mar. 15, 1948); reprinted 
    at 13 Code of Federal Regulations 1359 (Mar. 16, 1948) and 94 Cong. 
    Rec. 2929 80th Cong. 2d Sess., Mar. 16, 1948.
Dorsen and Shattuck, Executive Privilege, the Congress, and the Courts, 
    35 Ohio St. L.J. 1 (1974).
Essays on Executive Privilege, Samuel Poole Weaver Constitutional Law 
    Series, No. 1, American Bar Foundation, Chicago (1974).
Executive Privilege, Secrecy in Government, Freedom of Information, 
    Hearings before the Senate Government Operations Committee, 
    Subcommittee on Intergovernmental Operations, 93d Cong. 1st Sess. 
    (1973).
Executive Privilege: The Withholding of Information by the Executive, 
    Hearings before the Senate Judiciary Committee, Subcommittee on 
    Separation of Powers, 92d Cong. 1st Sess. (1971).
Freund, Paul A., The Supreme Court, 1973 Term--Foreword: On 
    Presidential Privilege, 88 Harv. L. Rev. 13 (1974).
Hardin, Executive Privilege in the Federal Courts, 71 Yale L.J. 879 
    (1959).
Harris, Joseph P., Congressional Control of Administration, The 
    Brookings Institution, Washington, D.C. (1964).
Henderson, Thomas A., Congressional Oversight of Executive Agencies, 
    University of Florida Press, Gainesville (1970).
Kramer, Robert, and Marcuse, Herman, Executive Privilege--A Study of 
    the Period 1953-1960, 29 George Washington Law Rev. 623-717 and 
    827-916 (1961).
Letter of the President to the Secretary of Defense Directing Him to 
    Withhold Certain information from the Senate Committee on 
    Government Operations, Public Papers of the Presidents: Dwight D. 
    Eisenhower, 483 (Mar. 17, 1954).
Memorandum of Attorney General Tom C. Clark to President Truman 
    regarding executive privilege (1948). The original of this 
    memorandum is now kept at the Harry S. Truman Library in 
    Independence, Missouri. A portion appears in the concurring and 
    dissenting opinion of Judge Mackinnon, Nixon v Sirica, 487 F2d 700, 
    734-736, No. 9 (D.C. Cir., 1973).
Nathanson, From Watergate to Marbury v Madison: Some Reflections on 
    Presidential Privilege in Current and Historical Perspectives, 16 
    Ariz. L. Rev. 59 (1974).
Opinion of Attorney General Robert H. Jackson to President Roosevelt 
    regarding refusal to transmit Federal Bureau of Investigation 
    Records to Congressional Committees, 40 Opinions of the Attorney 
    General No. 8, Apr. 30, 1941. This opinion is reprinted at 94 Cong. 
    Rec. A2459, A2460, 80th Cong. 2d Sess., Apr. 22, 1948.
Refusals by the Executive Branch to Provide Information to the Congress 
    l964-1973, Survey of the Senate Committee on the Judiciary, 
    Subcommittee on Separation of Powers, 93d Cong. 2d Sess. (1974).
Rodino, Peter, Congressional Review of Executive Action, 5 Seton Hall 
    L. Rev. 489 Spring (1974).
Rogers, William P., Constitutional Law: The Papers of the Executive 
    Branch, 44 A.B.A.J. 941 (1958).
Schwartz, Executive Privilege and Congressional Investigatory Power, 47 
    California L. Rev. 3 (1959).

[[Page 2334]]

Taylor, Telford, Grand Inquest, Simon Schuster, Inc., New York, 1955.
The Power of the President to Withhold Information from the Congress, 
    Memorandum of the Attorney General [William P. Rogers], Committee 
    Print of the Senate Judiciary Committee, Subcommittee on 
    Constitutional rights, 85th Cong. 2d Sess. (1958).
Wolkinson, Herman, Demands of Congressional Committees for Executive 
    Papers, 10 Fed. B. J. 103 (1949).
Younger, Irving, Congressional Investigations and Executive Secrecy: A 
    Study in the Separation of Powers, 20 Pitt. L. Rev. 755 
    1959).                          -------------------

Refusals by Former Executive Branch Officials

Sec. 3.1 A former President and two former cabinet officers refused to 
    appear in response to subpenas ad testificandum issued by the 
    Committee on Un-American Activities in its investigation of their 
    knowledge of a Federal Bureau of Investigation memorandum they had 
    received while serving in the executive branch.

    On Nov. 12 and 13, 1953,(8)  a former President and two 
former cabinet officers refused to testify about their knowledge of a 
1946 memorandum from the Director of the Federal Bureau of 
Investigation, J. Edgar Hoover, concerning alleged Communist Party 
affiliations of the late Harry Dexter White, who in 1946 served as 
Assistant Secretary of the Treasury and had been appointed by the 
President to the United States Mission to the International Monetary 
Fund.
---------------------------------------------------------------------------
18. See Beck, Carl, Contempt of Congress, A Study of the Prosecutions 
        Initiated by the Committee on Un-American Activities, 1945-
        1967, The Hauser Press, New Orleans, 1959, pp. 101-102.
---------------------------------------------------------------------------

    In a Nov. 12, 1953, letter to the Chairman of the Committee on Un-
American Activities, Harold H. Velde, of Illinois, former President 
Harry S. Truman stated that he declined to comply with the subpena to 
appear on Nov. 13, 1953, because he assumed that the committee sought 
to examine him with respect to matters which occurred during his tenure 
as President. He asserted that if the constitutional doctrine of 
separation of powers and independence of the Presidency is to have 
validity, it must also apply to a President after expiration of his 
term of office. He expressed the view that the doctrine would be 
destroyed and the President would become a mere arm of the legislative 
branch if he felt during his term that every act would be a subject of 
official inquiry and possible distortion for political purposes. Mr.

[[Page 2335]]

Truman also stated that he would be happy to appear and respond to 
questions relating to his acts as a private citizen either before or 
after leaving office and unrelated to his activities as President. The 
committee took no further action.
    Similarly, Supreme Court Associate Justice Tom C. Clark, Attorney 
General in 1946, refused to appear on Nov. 13, 1953, as ordered by 
subpena. In a letter to the Chairman of the Committee on Un-American 
Activities, Mr. Justice Clark cited the importance of judicial branch 
independence and freedom from the strife of public controversy as 
reasons for his refusal to appear. He offered to consider responding to 
any written questions, subject only to his constitutional duties.
    The Governor of South Carolina, James F. Byrnes, Secretary of State 
in 1946, refused to appear before the committee on Nov. 13, 1953, in 
response to a subpena. In a telegram to the chairman, Governor Byrnes 
stated that he could not by appearing admit the committee's right to 
command a Governor to leave his state and remain in Washington until 
granted leave to return. Such authority, he said, would enable the 
legislative branch to paralyze the administration of affairs of the 
sovereign states. He offered to respond to written questions and 
invited the committee or a subcommittee to meet with him at the State 
House in Columbia, S.C. The committee sent a subcommittee to South 
Carolina.



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                 B. INQUIRIES AND THE EXECUTIVE BRANCH
 
Sec. 4. Litigation to Enforce a Subpena; Senate Select Committee v 
    Nixon

    A review of recent litigation to enforce congressional subpenas may 
help reveal the issues involved in reconciling the congressional 
authority to seek information with the Chief Executive's claim of right 
to deny access to information in some circumstances.

    The stage for a historic confrontation was set when the Senate 
Select Committee on Presidential Campaign Activities, created on Feb. 
7, 1973, by unanimous approval of Senate Resolution 60,(19)  
with authority to investigate and study illegal, improper, or unethical 
activities in connection with the 1972 Presidential campaign and to 
issue subpenas,(20)  discovered that

[[Page 2336]]

President Nixon had tape recorded conversations at the White House. 
After failing to obtain certain information by informal means, the 
select committee issued two subpenas duces tecum, one for tape 
recordings of five meetings between the President and White House 
Counsel John W. Dean III, and another for documents and materials 
relating to alleged criminal acts by a list of 25 persons. When the 
President failed to disclose the recordings and other materials, the 
select committee filed a civil actiont (1) for declaratory 
judgment, mandatory injunction, mandamus, and summary judgment in the 
District Court of the District of Columbia to enforce its subpenas and 
compel the President to transmit these materials to the select 
committee.(2) 
---------------------------------------------------------------------------
19. See Sec. 1.46, supra, and 119 Cong. Rec. 3830-51, 93d Cong. 1st 
        Sess. for a discussion of this resolution.
20. Authority to issue subpenas, originally granted by S. Res. 60, was 
        buttressed and clarified by S. Res. 194, which expressed the 
        sense of the Senate that issuance of a subpena to the President 
        was authorized by S. Res. 60, and ratified that issuance. 
        Furthermore, S. Res. 194 expressed the sense of the Senate that 
        the select committee's initiation and pursuit of the lawsuit to 
        compel disclosure of the subpenaed materials did not require 
        prior approval of the Senate, and that in seeking this 
        information which was of vital importance the select committee 
        furthered a valid legislative purpose. See 119 Cong. Rec. 
        36094, 36095, 93d Cong. 1st Sess., Nov. 7, 1973.
 1. This case, captioned as Senate Select Committee on Presidential 
        Campaign Activities, suing in its own name and in the name of 
        the United States, et al. v Richard M. Nixon, individually and 
        as President of the United States, was the subject of three 
        judicial pronouncements discussed here, two in the District 
        Court of the District of Columbia, an opinion entered by Chief 
        Judge John J. Sirica and reported at 366 F Supp 51 (Oct. 17, 
        1973), and an order and memorandum entered by Judge Gerhard A. 
        Gesell and reported at 370 F Supp 521 (Feb. 8, 1974); and one 
        in the Court of Appeals for the District of Columbia Circuit, 
        an opinion written by Chief Judge David L. Bazelon for the 
        court sitting en banc and reported at 498 F2d 725 (May 23 
        1974).
 2. In seeking these civil remedies, the select committee rejected as 
        ``unseemly and inappropriate'' two traditional procedures to 
        enforce subpenas, a contempt proceeding under 2 USC Sec. 192 
        and common law powers permitting the Sergeant at Arms forcibly 
        to secure attendance of a subpenaed person. See Senate Select 
        Committee on Presidential Campaign Activities, et al. v Nixon, 
        366 F Supp 51, 54 (D.D.C., Oct. 17, 1973), John J. Sirica, 
        Chief Judge.
---------------------------------------------------------------------------

    In an order dated Oct. 17, 1973, the trial court dismissed the 
select committee's prayer for enforcement of its subpena after deciding 
only one of the several issues raised, that existing statutes did not 
grant jurisdiction to decide

[[Page 2337]]

such a controversy.(3)  To remedy this inhibition, Congress, 
at the instance of the select committee, expressly conferred special 
jurisdiction on the District Court of the District of Columbia to 
consider civil actions brought by the select committee to enforce its 
subpenas.(4) 
---------------------------------------------------------------------------
 3. Senate Select Committee on Presidential Campaign Activities, et al. 
        v Nixon, 366 F Supp 51, 61 (D.D.C.) John J. Sirica Chief Judge.
 4. This jurisdictional statute, Pub. L. No. 93-190 (Dec. 19, 1973), 
        appears in Senate Select Committee on Presidential Campaign 
        Activities, Presidential Campaign Activities of 1972, S. Res. 
        60, appendix to the hearings, 93d Cong. 2d Sess. (1974).
---------------------------------------------------------------------------

    After rehearing the case and considering the contentions of the 
parties, the district court (5)  made several findings: 
first, a controversy between two branches of government in which one 
sought information from the other was justiciable (appropriate for 
resolution by the courts) and was not, as suggested by the President's 
counsel, a nonjusticiable political question; second, that in a 
controversy of this kind, the court, after determining justiciability, 
had a ``duty to weigh the public interest protected by the President's 
claim of privilege against the public interest that would be served by 
disclosure to the Committee in this particular instance''; 
(6) third, that the select committee failed to demonstrate 
either a pressing need for the subpenaed tapes or that further public 
hearings concerning the tapes would serve the public interest; fourth, 
the President's claim that the public interest was best served by a 
blanket unreviewable claim of confidentiality over all communications 
was rejected; and fifth, that the pending criminal prosecutions had to 
be safeguarded from the prejudicial effect which might arise if the 
select committee subpenaed the materials. On the basis of these 
holdings, the court declined to issue an injunction directing the 
President to comply with the subpena requiring information about the 25 
listed individuals, and instead directed the President to submit a 
particularized statement as to selected portions of the subpenaed tape 
recordings.
---------------------------------------------------------------------------
 5. See Senate Select Committee on Presidential Campaign Activities, et 
        al. v Nixon, 370 F Supp 521 (D.D.C., Feb. 8, 1974), Gerhard A. 
        Gesell, District Judge.
 6. 370 F Supp 521, 522 (D.D.C. 1974); the quoted language was taken 
        from Nixon v Sirica, 487 F2d 700, 716-718 (D.C. Cir., 1973), 
        the suit brought by the Special Prosecutor to obtain certain 
        evidence from the President.
---------------------------------------------------------------------------

    The President refused to submit such a statement and reasserted

[[Page 2338]]

his generalized claim of privilege on the grounds of confidentiality 
and his duty to prevent the possibly prejudicial effects on criminal 
prosecutions which might result from disclosure of the materials to the 
select committee. The trial court dismissed the select committee's suit 
to compel disclosure of the tapes.(7)
---------------------------------------------------------------------------
 7. 370 F Supp 521, 524 (D.D.C. 1974).
---------------------------------------------------------------------------

    The select committee did not contest the decision to quash the 
subpena for materials relating to the 25 named individuals, but 
appealed the dismissal of the action to compel disclosure of the tapes. 
The United States Court of Appeals for the District of Columbia Circuit 
applying the reasoning it had used in Nixon v Sirica,(8) in 
which the Special Prosecutor was granted access to certain Presidential 
tapes for use in grand jury investigations, rejected the select 
committee's argument that a district court, once it had determined that 
a generalized claim of privilege failed, lacked authority to balance 
public interests. The court of appeals also rejected the district 
court's rulings that the President's generalized claim of privilege 
failed and that the Chief Executive must submit subpenaed materials to 
the court accompanied by particularized claims to be weighed against 
the public interest.
---------------------------------------------------------------------------
 8. Nixon v Sirica, 487 F2d 700 (D.C. Cir. 1973) [hereinafter cited as 
        Nixon].
---------------------------------------------------------------------------

    Restating its belief expressed in Nixon v Sirica, that Presidential 
communications are ``presumptively privileged,'' (9) and 
that the privilege is analogous to the privilege ``between a 
congressman and his aides under the speech and debate clause; to that 
among judges and their law clerks; and . . . to that contained in the 
fifth exemption to the Freedom of Information Act,'' (10) 
the court held that, ``. . . the presumption that the public interest 
favors confidentiality can be defeated only by a strong showing of need 
by another institution of government, a showing that the 
responsibilities of that institution cannot responsibly be fulfilled 
without access to records of the President's deliberations. . . .'' 
(11) Such a showing ``turns not on the nature of the 
Presidential conduct the subpenaed materials might reveal, but

---------------------------------------------------------------------------
 9. Senate Select Committee on Presidential Campaign Activities, et al. 
        v Nixon, 498 F2d 725, 730 (D.C. Cir. 1974) [hereinafter cited 
        as Select Committee]; see also Nixon, at 705, 717, and 718.
10. Select Committee, at 729; see also Nixon, at 717.
11. Select Committee, at 730; see also Nixon, at 722.
---------------------------------------------------------------------------

[[Page 2339]]

rather on the nature and appropriateness of the function in the 
performance of which the material was sought and the degree to which 
the material was necessary to its fulfillment.'' (12)

---------------------------------------------------------------------------
12. Select Committee, at 731; see also Nixon, at 717, 718.
---------------------------------------------------------------------------

    The court applied these tests to the select committee's functions 
and asserted needs. The select committee maintained that it needed 
subpenaed materials to resolve conflicts in the voluminous testimony it 
had received so that it could responsibly exercise its duty to oversee 
activities and ascertain malfeasance in the executive department. 
Without denying the congressional role to exercise a general oversight 
power or defining the limits of that power, the court found that the 
select committee's oversight authority was subordinate to the 
constitutionally prescribed method of ascertaining malfeasance by 
executive officials, impeachment. Because the House Committee on the 
Judiciary had commenced an impeachment inquiry, the Select Committee's 
immediate need for the subpenaed materials was ``merely cumulative'' 
from a congressional perspective. The need for the subpenaed materials 
to fulfill its legislative responsibility, to determine whether 
Congress should enact laws to regulate political activities, also 
failed because the court believed that legislative judgments, unlike 
grand jury determinations of probable cause, depend more on predicted 
consequences of proposed legislative actions and their political 
acceptability than on precise reconstruction of past 
events.(13)
---------------------------------------------------------------------------
13. Select Committee, at 732.
---------------------------------------------------------------------------

    The court indicated that the President's obligation to respond to a 
subpena would not require him to submit particularized claims of 
privilege to the court to be weighed against the public interest in 
disclosure unless the select committee made a ``showing of the order 
made by the grand jury'' in Nixon v Sirica.(14) Applying 
this standard, the court concluded that the need demonstrated by the 
select committee in the circumstances of this case and in light of the 
impeachment investigation by the House Committee on the Judiciary, was 
``too attenuated and too tangential'' to permit a judicial judgment 
that the President was required to comply with the committee's 
subpena.(15)
---------------------------------------------------------------------------
14. Select Committee, at 729, 730; in Nixon, at 715, the Special 
        Prosecutor was found to have made a ``uniquely powerful 
        showing'' of need for subpenaed materials.
15. Select Committee, at 733.
---------------------------------------------------------------------------

    The court of appeals affirmed the order dismissing the select

[[Page 2340]]

committee's suit without prejudice, although on grounds different from 
those announced by the district court.(16)
---------------------------------------------------------------------------
16. Id.
---------------------------------------------------------------------------

    A review of the Chief Executive's refusal to disclose information 
on the basis of privilege would not be complete without a discussion of 
certain aspects of the 8-0 Supreme Court decision in United States v 
Nixon,(17) in which the President was ordered to respond to 
a subpena issued by the Special Prosecutor for tape recordings by 
submitting them to the district court for judicial inspection. Because 
the opinion expressly stated that the court was ``not here concerned 
with the balance . . . between the confidentiality interest of the 
executive and congressional demands for information,'' (18) 
its holding would not control a future suit brought to enforce a 
congressional subpena. Nonetheless, an analysis of the court's 
reasoning and approach demonstrates the limits and foundation of 
executive privilege, factors which would be involved in such an action. 
Reaffirming that ``it is emphatically the province and duty of the 
Supreme Court to `say what the law is','' (19) the court 
rejected the President's claim of absolute discretion exclusively to 
determine what information may be withheld under the shield of 
executive privilege. However, in one of the most significant holdings 
of the opinion, the court at three points alluded to a constitutional 
foundation for a claim of executive privilege based on confidentiality 
of Presidential communications:
---------------------------------------------------------------------------
17. 418 U.S. 683 (1974) [hereinafter cited as U.S. v Nixon]; Mr. 
        Justice Rehnquist took no part in the consideration or decision 
        of this case. See Constitution of the United States of America: 
        Analysis and Interpretation, S. Doc. No. 92-82, 92 Cong. 2d 
        Sess., 1975 Supplement, p. S 20-22, for a discussion of this 
        decision.
18. U.S. v Nixon, at 712 n. 19.
19. U.S. v Nixon, at 705; the internal quotes were taken from Marbury v 
        Madison, 1 Cranch 137 (1803).
---------------------------------------------------------------------------

        Whatever the nature of the privilege of confidentiality of 
    presidential communications in the exercise of Art. III powers the 
    privilege can be said to derive from the supremacy of each branch 
    within its own assigned area of constitutional duties. Certain 
    powers and privileges flow from the nature of enumerated powers; 
    (20) the protection

---------------------------------------------------------------------------
20. In a footnote at this point the court dealt with the Special 
        Prosecutor's contention that no constitutional provision 
        authorized the Executive to assert privilege by stating that 
        silence of the Constitution is not dispositive. To support this 
        position, the following passage from Marshall v Gordon, 243 
        U.S. 521, 537 (1937), was cited: ``The rule of constitutional 
        interpretation announced in McCulloch v Maryland, 4 Wheat. 316, 
        that that which was reasonably appropriate and relevant to the 
        exercise of a granted power was considered as accompanying the 
        grant, has been so universally applied that it suffices merely 
        to state it.'' See U.S. v Nixon, at 705, n. 16.
---------------------------------------------------------------------------

[[Page 2341]]

    of the confidentiality of presidential communications has similar 
    constitutional underpinnings.(1)

---------------------------------------------------------------------------
 1. U.S. v Nixon, at 705, 706.
---------------------------------------------------------------------------

        A President and those who assist him must be free to explore 
    alternatives in the process of shaping policies and making 
    decisions and to do so in a way many would be unwilling to express 
    except privately. These are the considerations justifying a 
    presumptive privilege for presidential communications. The 
    privilege is fundamental to the operation of government and 
    inextricably rooted in the separation of powers under the 
    Constitution.(2)
---------------------------------------------------------------------------
 2. Here the Court cited Carl Zeiss Stiftung v V.E.B. Carl Zeiss, Jena, 
        40 F.R.D. 318, 325 (DDC 1966), [aff'd. 384 F2d 979, cert. 
        denied 389 U.S. 952 (1967)]; Nixon v Sirica, 487 F2d 700, 713 
        (D.C. Cir. 1973); Kaiser Aluminum and Chem. Corp. v U.S., 157 F 
        Supp 939 (Ct. Cl. 1958); and The Federalist No. 64 (S.F. Mittel 
        ed. 1938). U.S. v Nixon, at 708, n. 17.
---------------------------------------------------------------------------

        Nowhere in the Constitution, as we have noted earlier, is there 
    any explicit reference to a privilege of confidentiality, yet to 
    the extent this interest relates to the effective discharge of a 
    President's powers, it is constitutionally based.(3)
---------------------------------------------------------------------------
 3. U.S. v Nixon, at 711.
---------------------------------------------------------------------------

    The court's willingness to balance competing interests depends on 
the nature of the claim of executive privilege. Although it found that 
a generalized claim of privilege based on confidentiality must yield to 
a need of the Special Prosecutor to obtain information for use in a 
pending criminal trial, the court indicated that it would not be as 
willing to balance interests or reject a claim of executive privilege 
based on the President's need to protect military, diplomatic or 
sensitive national security secrets. ``As to these areas of Art. II 
duties the courts have traditionally shown the utmost deference to 
presidential responsibilities.'' (4)
---------------------------------------------------------------------------
 4. U.S. v Nixon, at 710; the court cited C. & S. Air Lines v Waterman, 
        333 U.S. 103, 111 (1948) and U.S. v Reynolds, 345 U.S. 1 
        (1952), two cases where the Supreme Court deferred to 
        Presidential claims of secrecy in foreign policy and military 
        affairs, respectively.
---------------------------------------------------------------------------

    Another factor in the authority of courts to review claims of 
executive privilege is the nature of the asserted need for information. 
Because claims of executive privilege either on grounds of 
confidentiality or diplomatic, military, or national security secrets 
are constitutionally based, the claim of need based on the Constitution 
is more likely to be reviewed than

[[Page 2342]]

one which is not. The fact that the Special Prosecutor's claim of need 
for information needed in a pending criminal trial was based on the 
fifth amendment guarantee of due process of law and the sixth amendment 
right to be confronted with witnesses against him and have compulsory 
process (subpenas) for obtaining witnesses in his favor was accorded 
great weight by the court in balancing the need for evidence against 
the requirement of confidentiality. Linking these constitutional bases 
to the responsibilities of the judicial branch tipped the balance in 
favor of requiring the President to submit subpenaed materials for a 
judicial inspection.

        The impediment that an absolute, unqualified privilege would 
    place in the way of the primary constitutional duty on the Judicial 
    Branch to do justice in criminal prosecutions would plainly 
    conflict with the function of the courts under Art. III. . . .
        To read the Art. II powers of the President as providing [such] 
    privilege [on the basis merely of] a generalized claim of the 
    public interest in confidentiality of nonmilitary and nondiplomatic 
    discussions would upset the constitutional balance of ``a workable 
    government'' and gravely impair the role of the courts under Art. 
    III.(5)
---------------------------------------------------------------------------
 5. U.S. v. Nixon, at 707.
---------------------------------------------------------------------------

    Additional factors in the decision were the court's unwillingness 
to conclude that advisors would temper the candor of their remarks 
because of the possibility of occasional disclosure; (6) and 
its belief that a judge in chambers could protect the confidentiality 
of Presidential communications consistent with the fair administration 
of justice.(7)
---------------------------------------------------------------------------
 6. U.S. v. Nixon, at 712.
 7. U.S. v. Nixon, at 714.
---------------------------------------------------------------------------



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                 B. INQUIRIES AND THE EXECUTIVE BRANCH
 
Sec. 5. Legislation to Obtain Information

    Some statutes require agencies to provide information to selected 
committees. An executive agency, on the request of the Committee on 
Government Operations of the House, or any seven members thereof, or on 
request of the Committee on Government Operations of the Senate, or any 
five members thereof, is required to submit any information requested 
of it relating to any matter within the jurisdiction of the 
committee.(8)
---------------------------------------------------------------------------
 8. 5 USC Sec. 2954; Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 413.
---------------------------------------------------------------------------

    The Atomic Energy Commission is required to keep the Joint 
Committee on Atomic Energy fully and currently informed with respect to 
all commission activities.(9~) The

[[Page 2343]]

Department of Defense is required to keep the joint committee fully and 
currently informed with respect to all matters within the department 
relating to the development, utilization, or application of atomic 
energy. Any government agency is required to furnish any information 
requested by the joint committee with respect to the activities or 
responsibilities of that agency in the field of atomic 
energy.(10)
---------------------------------------------------------------------------
 9. 42 USC Sec. 2252; Aug. 1, 1946, c. 724, Sec. 202, as added Aug. 30, 
        1954, c. 1073 Sec. 1, 68 Stat. 956, and amended Sept. 6, 1961, 
        Pub. L. 87-206, Sec. 17, 75 Stat. 479; Mar. 26, 1964, Pub. L. 
        88-294, 78 Stat. 172. By Pub. L. 93-438, the AEC was abolished 
        and its functions transferred to the Nuclear Regulatory 
        Commission and the Energy Research and Development 
        Administration. The jurisdiction of the joint committee was 
        eliminated in the 95th Congress.
10. Id.
---------------------------------------------------------------------------

    Other statutes encourage government personnel, as distinguished 
from departments and agencies to supply information to Congress. The 
right of federal employees, individually or collectively, to furnish 
information to either House of Congress or to a committee or member 
thereof, may not be interfered with or denied.(11) Upon the 
request of a congressional committee, joint committee, or member of 
such committee, an officer or employee of the Department of State, the 
U.S. Information Agency, the Agency for International Development, the 
U.S. Arms Control and Disarmament Agency, or any other department, 
agency, or independent establishment of the U.S. government primarily 
concerned with matters relating to foreign countries or multilateral 
organizations, may express views and opinions and make recommendations 
if the request of the committee or member of the committee relates to a 
subject within the jurisdiction of that committee.(12)
---------------------------------------------------------------------------
11. 5 USC Sec. 7102; Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 523.
12. 2 USC Sec. 194a; Pub. L. 92-352, title V, Sec. 502, July 13, 1972, 
        86 Stat. 496, amended Pub. L. 93-126, Sec. 17, Oct. 18, 1973, 
        87 Stat. 455.                          -------------------
---------------------------------------------------------------------------

Concurrent Resolution

Sec. 5.1 The Senate approved a concurrent resolution to establish a 
    procedure assuring Congress the full and prompt production of 
    information requested from federal officers and employees but the 
    procedures therein never became effective since not approved by the 
    House.

[[Page 2344]]

    On Dec. 18, 1973,(13) the Senate by voice vote approved 
Senate Concurrent Resolution 30:
---------------------------------------------------------------------------
13. 119 Cong. Rec. 42105, 42106, 93d Cong. 1st Sess., see also S. Rept. 
        No. 93-613.
---------------------------------------------------------------------------

        Whereas the withholding from either House of Congress, or from 
    the committees of Congress and subcommittees thereof by officers or 
    employees of the United States of any information, including 
    testimony, records, or documents, or other material requested by 
    the Congress in order to enable it to exercise a legislative 
    function under the Constitution erodes the system of checks and 
    balances prescribed by the Constitution, unless such withholding is 
    justified by the President to the Congress and, if necessary, 
    determined by the Judiciary to be proper: Now, therefore, be it
        Resolved by the Senate (the House of Representatives 
    concurring), (a) That, when an officer or employee of the United 
    States is summoned to testify or to produce information, records, 
    documents, or other material before either House of Congress or a 
    committee of the Congress or subcommittee thereof, that officer or 
    employee shall appear at the time and place specified and shall 
    answer all questions propounded to him, or produce all information, 
    including records, documents, and other material sought, unless, in 
    the case of an officer or employee of a Federal agency in the 
    executive branch, either within twenty days of the date of the 
    summons, or, in the case of any such information which was first 
    requested at an appearance, within ten days after that appearance, 
    the President formally and expressly instructs the officer or 
    employee in writing to withhold the information requested, 
    including answers to specific questions, or specific records, 
    documents, or other material, in which event such Presidential 
    instruction shall set forth the grounds on which it is based.
        (b) Each written Presidential instruction pursuant to 
    subsection (a) shall be transmitted to the House of Congress or 
    committee of the Congress or subcommittee thereof requesting the 
    information, proposing the questions, or seeking the records, 
    documents, or other material.
        Sec. 2. (a) If a House of Congress or a committee of Congress--
        (1) determines that an officer or employee of the United States 
    has failed to comply with the provisions of section 1(a); or
        (2) upon consideration of the Presidential instruction 
    transmitted pursuant to section 1(b), determines that the 
    information requested is needed to enable it to exercise a 
    legislative function under the Constitution, it shall prepare a 
    written report setting forth such determination. In the case of a 
    committee, the chairman is authorized, subject to the approval of 
    the committee, to issue a subpena requiring such officer or 
    employee to appear before the committee at a time specified and to 
    provide the information requested by answering the question or 
    questions propounded and to produce any information, including 
    records, documents, or other material requested. In the case of a 
    House of Congress, the majority or minority leader shall introduce 
    a resolution citing such determination and authorizing the ma

[[Page 2345]]

    jority or minority leader of that House to issue a subpena 
    requiring such officer or employee to appear before such House and 
    to provide the information requested by answering the question or 
    questions propounded and to produce any information, including 
    records, documents, or other material requested.
        (b) If a committee of the Congress, or the majority or minority 
    leader of a House of Congress determines that an officer or 
    employee of the United States has failed to comply with a subpena 
    issued pursuant to subsection (a) within fifteen days after such 
    officer or employee receives such subpena, the chairman of such 
    committee or the majority or minority leader of such House shall 
    file--
        (1) in the case of a House of Congress, a resolution with such 
    House;
        (2) in the case of a joint committee, a concurrent resolution 
    with both Houses of Congress; and
        (3) in the case of a committee, a resolution with its House of 
    Congress; with a report and record of the proceedings relating to 
    such subpena. Congress, in the case of any such concurrent 
    resolution, and the House of Congress with which any such 
    resolution is filed, shall take such action as it deems proper with 
    respect to the disposition of such concurrent resolution or 
    resolution.
        (c)(1) A resolution introduced pursuant to subsections (a) or 
    (b) shall not be referred to a committee and shall be privileged 
    business for immediate consideration. It shall at any time be in 
    order (even though a previous motion to the same effect has been 
    disagreed to) to move to proceed to the consideration of the 
    resolution. Such motion shall be highly privileged and not 
    debatable. An amendment to the motion shall not be in order, and it 
    shall not be in order to move to reconsider the vote by which the 
    motion is agreed to or disagreed to.

        (2) If the motion to proceed to the consideration of the 
    resolution is agreed to, debate thereon shall be limited to two 
    hours, which shall be divided equally between those favoring and 
    those opposing the resolution. A motion further to limit debate 
    shall not be debatable. No amendment to, or motion to recommit, the 
    resolution shall be in order, and it shall not be in order to move 
    to reconsider the vote by which the resolution is agreed to or 
    disagreed to.
        (3) Motions to postpone, made with respect to the consideration 
    of the resolution, and motions to proceed to the consideration of 
    other business, shall be decided without debate.
        (4) All appeals from the decisions of the Chair relating to the 
    application of the rules of the Senate or the House of 
    Representatives, as the case may be, to the procedure relating to 
    the resolution shall be decided without debate.
        Sec. 3. (a) Each House of Congress and each committee or 
    subcommittee of the Congress shall take appropriate measures to 
    insure the confidentiality of any information made available to it 
    which, in the judgment of the Federal agency providing it and the 
    House of Congress or committee or subcommittee of the Congress 
    receiving it, requires protection against disclosure which would 
    endanger (1) personal privacy, (2) trade secrets or confidential 
    commercial or financial information, or

[[Page 2346]]

    (3) the conduct of the national defense, foreign policy, or law 
    enforcement activities.
        (b) The Select Committee on Standards and Conduct of the Senate 
    shall investigate any breach of confidentiality of information made 
    available under this part by a Member or employee of the Senate, 
    and the Committee on Standards of Official Conduct of the House of 
    Representatives shall investigate any breach of confidentiality of 
    information made available under this part by a Member or employee 
    of the House of Representatives. Such committee shall recommend 
    appropriate action such as censure or removal from office or 
    position.
        Sec. 4. For purposes of this resolution:
        (1) The term ``committee of the Congress'' means any joint 
    committee of the Congress or any standing committee, special 
    committee, or select committee of either House of Congress.
        (2) The term ``Federal agency'' has the same meaning given that 
    term under section 207 of the Legislative Reorganization Act of 
    1970 and includes the Executive Office of the President.
        Sec. 5. (a) Nothing in this resolution shall be construed to 
    require the furnishing or production of any information, records, 
    documents, or other material to either House of Congress if such 
    furnishing or production is prohibited by an Act of Congress.
        (b) Nothing in this resolution shall be construed as in any way 
    impairing the effectiveness or availability of any other procedure 
    whereby Congress may obtain information needed to enable it to 
    exercise a legislative function under the Constitution.

    The final disposition of this resolution (S. Con. Res. 30) in the 
House was referral to the Committee on Rules by the Speaker.

Bill

Sec. 5.2 The Senate approved a bill, not acted upon by the House, known 
    as the Congressional Right to Information Act to establish a 
    procedure assuring full and complete disclosure of information 
    requested from federal officers and employees.

    On Dec. 18, 1973,(14) the Senate approved S. 
2432:(15)
---------------------------------------------------------------------------
14. 119 Cong. Rec. 42101-05, 93d Cong. 1st Sess.
15. See S. Rept. No. 93-612 for the report on the bill.
---------------------------------------------------------------------------

        That this Act may be cited as the ``Congressional Right to 
    Information Act''.
        Sec. 2. (a) Title III of the Legislative Reorganization Act of 
    1970 is amended by adding at the end thereof the following new 
    part:

                     Part 4--Keeping the Congress Informed

                       informing congressional committees

            Sec. 341. (a) The head of every Federal agency shall keep 
        each committee of the Congress and the subcommittees thereof 
        fully and cur

[[Page 2347]]

        rently informed with respect to all matters relating to that 
        agency which are within the jurisdiction of such committee or 
        subcommittee.
            (b) The head of a Federal agency, on request of a committee 
        of the Congress or a subcommittee thereof or on request of two-
        fifths of the members thereof, shall submit any information 
        requested of such agency head relating to any matter within the 
        jurisdiction of the committee or subcommittee.

                           production of information

            Sec. 342. (a) When an officer or employee of the United 
        States is summoned to testify or to produce information, 
        records, documents, or other material before either House of 
        Congress or a committee of the Congress or subcommittee 
        thereof, that officer or employee shall appear at the time and 
        place specified and shall answer all questions propounded to 
        him, or produce all information, including records, documents, 
        and other material sought, unless, in the case of an officer or 
        employee of a Federal agency in the executive branch, either 
        within twenty days of the date of the summons, or, in the case 
        of any such information which was first requested at an 
        appearance, within ten days after that appearance, the 
        President formally and expressly instructs the officer or 
        employee in writing to withhold the information requested, 
        including answers to specific questions, or specific records, 
        documents, or other material, in which event such Presidential 
        instruction shall set forth the grounds on which it is based.
            (b) Each written Presidential instruction pursuant to 
        subsection (a) shall be transmitted to the House of Congress or 
        committee of the Congress or subcommittee thereof requesting 
        the information, proposing the questions, or seeking the 
        records, documents, or other material.

                             subpena of information

            Sec. 343. (a) If a House of Congress or a committee of 
        Congress--
            (1) determines that an officer or employee of the United 
        States has failed to comply with the provisions of section 
        342(a); or
            (2) upon consideration of the Presidential instruction 
        transmitted pursuant to section 342 (b), determines that the 
        information requested is needed to enable it to exercise a 
        legislative function under the Constitution it shall prepare a 
        written report setting forth such determination. In the case of 
        a committee, the chairman is authorized, subject to the 
        approval of the committee, to issue a subpena requiring such 
        officer or employee to appear before the committee at a time 
        specified and to provide the information requested by answering 
        the question or questions propounded and to produce any 
        information, including records, documents, or other material 
        requested. In the case of a House of Congress, the majority 
        leader shall introduce a resolution citing such determination 
        and authorizing the majority leader of that House to issue a 
        subpena requiring such officer or employee to appear before 
        such House and to provide the information requested by 
        answering the question or questions propounded and to produce 
        any information, including records, documents, or other 
        material requested.
            (b)(1) If a committee of the Congress determines that an 
        officer or employee of the United States has failed to comply 
        with a subpena issued pursuant to subsection (a) within fifteen 
        days after such officer or employee receives such subpena, the 
        chairman of such committee is authorized, subject to the 
        provisions of paragraph (2), to bring a civil action in the 
        United States District Court for the District of Columbia to 
        enforce such subpena.
            (2) If a committee of the Congress referred to in paragraph 
        (1) deter

[[Page 2348]]

        mines that the chairman of such committee should institute a 
        civil action in the United States District Court for the 
        District of Columbia to enforce the subpena issued by it 
        pursuant to subsection (a), the chairman shall introduce a 
        resolution in the House or Houses of Congress concerned citing 
        the failure to comply with the subpena of the committee and 
        authorizing the chairman to bring a civil action in such 
        purpose. If such resolution is agreed to by the House or Houses 
        of Congress concerned, the chairman shall institute a civil 
        action in the United States Court for the District of Columbia 
        to enforce the subpena.
            (c) If a House of Congress determines that an officer or 
        employee of the United States has failed to comply with a 
        subpena issued pursuant to subsection (a) within fifteen days 
        after such officer or employee receives such subpena, the 
        majority or minority leader of that House shall introduce a 
        resolution citing such failure to comply and authorizing the 
        majority or minority leader of that House to bring a civil 
        action in the United States District Court for the District of 
        Columbia to enforce such subpena.
            (d)(1) A resolution introduced pursuant to subsections (a), 
        (b) (2), or (c) shall not be referred to a committee and shall 
        be privileged business for immediate consideration. It shall at 
        any time be in order (even though a previous motion to the same 
        effect has been disagreed to) to move to proceed to the 
        consideration of the resolution. Such motion shall be highly 
        privileged and not debatable. An amendment to the motion shall 
        not be in order, and it shall not be in order to move to 
        reconsider the vote by which the motion is agreed to or 
        disagreed to.
            (2) If the motion to proceed to the consideration of the 
        resolution is agreed to, debate thereon shall be limited to two 
        hours, which shall be divided equally between those favoring 
        and those opposing the resolution. A motion further to limit 
        debate shall not be debatable. No amendment to, or motion to 
        recommit, the resolution shall be in order, and it shall not be 
        in order to move to reconsider the vote by which the resolution 
        is agreed to or disagreed to.
            (3) Motions to postpone, made with respect to the 
        consideration of the resolution, and motions to proceed to the 
        consideration of other business, shall be decided without 
        debate.
            (4) All appeals from the decisions of the Chair relating to 
        the application of the rules of the Senate or the House of 
        Representatives, as the case may be, to the procedure relating 
        to the resolution shall be decided without debate.
            (e) The provisions of subsection (d) of this section are 
        enacted by the Congress--
            (1) as an exercise of the rulemaking power of the Senate 
        and the House of Representatives, respectively, and as such 
        they shall be considered as part of the rules of each House, 
        respectively; and such rules shall supersede other rules only 
        to the extent that they are inconsistent therewith; and
            (2) with full recognition of the constitutional right of 
        either House to change such rules (so far as relating to the 
        procedure in such House) at any time, in the same manner, and 
        to the same extent as in the case of any other rule of such 
        House.

                                judicial review

            Sec. 344. (a) The United States District Court for the 
        District of Columbia shall have original jurisdiction of 
        actions brought pursuant to section 343 of this Act without 
        regard to the sum or value of the matter in controversy. The 
        court shall have power to issue a mandatory injunction or other 
        order as may be ap

[[Page 2349]]

        propriate, and to make and enter a decree enforcing, modifying, 
        and enforcing as so modified, or setting aside in whole or in 
        part the subpena issued pursuant to section 343 of this Act.
            (b) Any congressional party commencing or prosecuting an 
        action pursuant to this section may be represented in such 
        action by such attorneys as it may designate.
            (c) Appeal of the judgment and orders of the court in such 
        actions shall be had in the same manner as actions brought 
        against the United States under section 1346 of title 28, 
        United States Code.
            (d) The courts shall give precedence over all other civil 
        actions to actions brought under this part.

                           protection of information

            Sec. 345. (a) Each House of Congress and each committee or 
        subcommittee of the Congress shall take appropriate measures to 
        insure the confidentiality of any information made available to 
        it under this part which, in the judgment of the Federal agency 
        providing it and the House of Congress or committee or 
        subcommittee of the Congress receiving it, requires protection 
        against disclosure which would endanger (1) personal privacy, 
        (2) trade secrets or confidential commercial or financial 
        information, or (3) the conduct of the national defense, 
        foreign policy, or law enforcement activities.
            (b) The Select Committee on Standards and Conduct of the 
        Senate shall investigate any breach of confidentiality of 
        information made available under this part by a Member or 
        employee of the Senate, and the Committee on Standards of 
        Official Conduct of the House of Representatives shall 
        investigate any breach of confidentiality of information made 
        available under this part by a Member or employee of the House 
        of Representatives. Such committee shall recommend appropriate 
        action such as censure or removal from office or position.

                                  definitions

            Sec. 346. For purposes of this part:
            (1) The term ``committee of the Congress'' means any joint 
        committee of the Congress or any standing committee, special 
        committee, or select committee of either House of Congress.
            (2) The term ``Federal agency'' has the same meaning given 
        that term under section 207 of this Act, and includes the 
        Executive Office of the President.

                               savings provisions

            Sec. 347. (a) Nothing in this part shall be construed to 
        require the furnishing or production of any information, 
        records, documents, or other material to either House of 
        Congress if such furnishing or production is prohibited by an 
        Act of Congress.
            (b) Nothing in this part shall be construed as in any way 
        impairing the effectiveness or availability of any other 
        procedure whereby Congress may obtain information needed to 
        enable it to exercise a legislative function under the 
        Constitution.

        (b) Title III of the table of contents of the Legislative 
    Reorganization Act of 1970 is amended by adding at the end thereof 
    the following:

                     Part 4--Keeping the Congress Informed

        Sec. 341. Informing congressional committees.
        Sec. 342. Production of information.
        Sec. 343. Subpena of information.
        Sec. 344. Judicial review.
        Sec. 345. Protection of information.
        Sec. 346. Definitions.
        Sec. 347. Savings provisions.

[[Page 2350]]

    The final disposition of this measure (Senate Bill 2432) in the 
House was referral to the Committee on Rules by the Speaker.

Joint Resolution

Sec. 5.3 The House approved a joint resolution, not passed by the 
    Senate, directing all executive departments and agencies of the 
    federal government to make available to committees and 
    subcommittees of the House and Senate information which may be 
    deemed necessary to enable them properly to perform duties 
    delegated to them by the Congress.

    On May 13, 1948,(16) the House, after rejecting a motion 
to recommit on a roll call vote of 145 yeas to 217 nays, approved House 
Joint Resolution 342 by a roll call vote of 219 yeas to 142 nays. The 
text of the joint resolution follows: (17)
---------------------------------------------------------------------------
16. 94 Cong. Rec. 5822, 80th Cong. 2d Sess.; debate on this joint 
        resolution appears on pp. 5700-43 and 5807-22, on May 12 and 
        13, 1948, respectively. The report on this measure is H. Rept. 
        No. 1595.
17. This copy of the joint resolution is the final form which was sent 
        to the Senate, read twice, and referred to the Committee on 
        Expenditures in the Executive Departments. Referral to the 
        committee was the final Senate disposition. The text that 
        appears in the Congressional Record is not given here because 
        it was amended several times.
---------------------------------------------------------------------------

        Resolved by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That all executive 
    departments and agencies of the Federal Government created by the 
    Congress, and the Secretaries thereof, and all individuals acting 
    under or by virtue of authority granted said departments and 
    agencies, are, and each of them hereby is, authorized and directed 
    to make available and to furnish to any and all of the standing, 
    special, or select committees of the House of Representatives and 
    the Senate, acting under the authority of any Federal statute, 
    Senate or House resolution, joint or concurrent resolution, such 
    information, books, records, and memoranda in the possession of or 
    under the control of any of said departments, agencies, 
    Secretaries, or individuals as may, by any of said committees, be 
    deemed to be necessary to enable it to carry on the investigations, 
    perform the duties, falling within its jurisdiction, when requested 
    to do so: Provided, That said request shall be made only by a 
    majority vote of all the members of the committee voting therefor 
    at a formal meeting of the committee: And provided further, That if 
    the committee be a committee created by the Senate, upon approval 
    of the President or President pro tempore of the Senate: And 
    provided further, That if the committee making such request be a 
    committee created by or acting under the authority of the House of 
    Representatives, upon approval of the Speaker or Acting Speaker of 
    the House of Representatives, such major

[[Page 2351]]

    ity vote of the committee to be shown by a certificate of the 
    chairman of the committee, countersigned by the clerk; the approval 
    of the President or President pro tempore of the Senate or the 
    Speaker or Acting Speaker of the House of Representatives to be 
    shown by letter over his signature. Any officer or employee in any 
    such executive department or agency who fails or refuses to comply 
    with a request of any committee of the Congress made in accordance 
    with the foregoing provisions of this section shall, upon 
    conviction thereof, be punished by a fine not exceeding $1,000 or 
    by imprisonment for not exceeding 1 year, or both, at the 
    discretion of the court.
        Sec. 2. When, by virtue of section 1, any committee of the 
    Congress shall have received information, books, records or 
    memoranda from any of the departments, agencies, Secretaries, or 
    individuals in pursuance of a request made under the authority of 
    said section, it shall forthwith, by majority vote of the 
    membership of said committee, determine what, if any, part of such 
    information shall be made public and what part shall be deemed to 
    be confidential, and it shall thereafter be unlawful for any member 
    of said committee or any employee thereof to divulge or to make 
    known in any manner whatever not provided by law to any person any 
    part of the information so disclosed to said committee and which 
    has by said committee been declared to be confidential; and any 
    offense against the foregoing provision shall be a misdemeanor and 
    shall be punished by fine not exceeding $1,000 or by imprisonment 
    not exceeding one year, or both, at the discretion of the court; 
    and, if the offender be an employee of the United States, he shall 
    be dismissed from office or discharged from employment.
        Sec. 3. It shall be unlawful for any individual, while or after 
    holding any office or employment under the United States 
    Government, to appropriate or take custody of, for his own 
    unofficial use or the unofficial use of any other person, any 
    papers, documents, or records (other than those which are of a 
    character strictly personal to him) to which he has or had access 
    solely by reason of holding or having held such office or 
    employment. Any individual who willfully violates this section 
    shall, upon conviction thereof, be punished by a fine not exceeding 
    $1,000, or by imprisonment for not exceeding one year, or both, at 
    the discretion of the court.
        Sec. 4. If any provision of this joint resolution, or the 
    application of such provision to any person or circumstance, is 
    held invalid, the remainder of the joint resolution, or the 
    application of such provision to persons or circumstances other 
    than those as to which it is held invalid, shall not be affected 
    thereby.
        Sec. 5. Nothing contained herein shall alter the procedure for 
    inspection of tax returns by committees of Congress prescribed by 
    section 55d of the Internal Revenue Code: Provided, That nothing 
    herein contained shall alter any provision of law which expressly 
    protects from disclosure specified categories of information 
    obtained by executive departments and agencies.
        Sec. 6. This joint resolution shall become effective on the 
    tenth day after the date of its enactment.

    This joint resolution was passed subsequent to President Truman's

[[Page 2352]]

refusal to permit the Secretary of Commerce to respond to a resolution 
of inquiry requesting a letter from the Director of the Federal Bureau 
of Investigation to the Secretary regarding the loyalty file on Dr. 
Edward U. Condon, Director of the National Bureau of 
Standards.(18)
---------------------------------------------------------------------------
18. See Sec. 2.20, supra, for a discussion of the resolution of 
        inquiry.
---------------------------------------------------------------------------



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 6. Limitations on Authority to Investigate--Pertinence of Inquiry


    Limitations on the authority to investigate are expressed in the 
Constitution and statutes, and judicial interpretation thereof, as well 
as in congressional and committee rules as interpreted and applied by 
presiding officers and the courts.

    The authority of Congress to investigate has been interpreted to 
derive from article I, section 1, stating that, ``All legislative 
Powers herein granted shall be vested in a Congress of the United 
States, which shall consist of a Senate and a House of 
Representatives.'' Consequently, the authority to investigate is 
necessarily limited by the authority to legislate.(19) 
---------------------------------------------------------------------------
19. See, for example, Barenblatt v U.S., 360 U.S. 109, 111 (1959) in 
        which Mr. Justice Harlan stated, ``The scope of the power of 
        inquiry, in short, is as penetrating and far-reaching as the 
        potential power to enact and appropriate under the 
        Constitution.'' See also Lovell, G. B., Scope of the 
        Legislative Investigational Power and Redress for Its Abuse, 9 
        Hastings L. J. 276 (1957).

    A review of criminal contempt proceedings provides a comprehensive 
overview of limits of authority to investigate including legislative 
purpose,(20) pertinence of investigation thereto, procedural 
regularity of hearings,(1) and rights of 
witnesses.(2)
---------------------------------------------------------------------------
20. See Sec. 1, supra, for a discussion of authority to investigate and 
        legislative purpose.
 1. See Sec. 8, infra.
 2. See Sec. Sec. 9 through 14, infra.

    The statute which makes failure to testify a crime, 2 USC Sec. 192, 
provides that the question must be ``pertinent to the subject under 
inquiry.'' Pertinence is a matter of law (3) and does not 
depend upon

---------------------------------------------------------------------------
 3. Braden v United States, 365 U.S. 431 (1961); and Sinclair v United 
        States, 279 U.S. 263 (1929).
---------------------------------------------------------------------------

[[Page 2353]]

the probative value of the evidence.(4) It means pertinent 
to the subject under inquiry, rather than pertinent to the person under 
interrogation,(5) and relates to the particular question 
asked, not to unasked possibilities.(6)

--------------------------------------------------------------------------
 4. Sinclair v United States, 279 U.S. 263 (1929). See 6 Cannon's 
        Precedents Sec. Sec. 336-338, for a discussion of this case.
 5. Rumely v United States, 197 F2d 166, 177 ( D. C. Cir. 1953); aff'd. 
        345 U.S. 41 (1953).
 6. Barsky v United States, 167 F2d 241, 248 (D.C. Cir. 1948); cert. 
        denied 334 U.S. 843 (1948).
---------------------------------------------------------------------------

    Because a legislative inquiry, unlike a judicial inquiry, must 
anticipate all possible cases which may arise rather than determine 
facts in a single case, the concept of pertinence in a congressional 
investigation is broader than that of relevance in the law of 
evidence.(7) The elements of pertinence are: (1) the 
material sought or answers requested must relate to a legislative 
purpose which Congress may constitutionally entertain, and (2) such 
material or answers must fall within the grant of authority actually 
made by Congress to the investigating committee. The question must be 
pertinent; if it is pertinent, an innocent true answer does not destroy 
such pertinence. Although the statute mentions pertinence only in 
relation to answers to questions, it applies equally to demands to 
produce papers.(8)
---------------------------------------------------------------------------
 7. Townsend v United States, 95 F2d 352 (D.C. Cir. 1938); cert. denied 
        30.3 U.S. 664 (1938).
 8. United States v Orman, 207 F2d 148, 153, 154, 156 (3d Cir. 1953). 
        See also, Bowers v United States, 202 F2d 447 (D.C. Cir. 1953) 
        and Moreland, Allen B., Congressional Investigations and 
        Private Persons, 40 So. Cal. L. Rev. 189, 236-239 (1967) for 
        discussions of pertinence.
---------------------------------------------------------------------------

    Because a witness at an investigative hearing exposes himself to 
criminal prosecution for contempt under 2 USO Sec. 192 by refusing to 
answer questions, he is entitled to knowledge of the subject to which 
the interrogation is deemed pertinent with the same degree of 
explicitness that the due process clause requires in the expression of 
any element of a criminal offense.(9) An indictment which 
fails to identify the subject under inquiry at the time the witness was 
interrogated is fatally defective because the subject is central to 
prosecution under the statute.(10)
---------------------------------------------------------------------------
 9. Watkins v United States, 354 U.S. 178, 209, 210 (1957).
10. Russell v United States, 369 U.S. 749, 764 (1962).
---------------------------------------------------------------------------

    Rule XI clause 28(h)(11) imposes a duty on the chairman 
at an in

[[Page 2354]]

vestigative hearing to announce the subject of the investigation in an 
opening statement. When a witness refuses to answer a question on the 
ground of pertinence, the committee must repeat the ``question under 
investigation'' and show specifically where the question is pertinent 
thereto.(12)
---------------------------------------------------------------------------
11. House Rules and Manual Sec. 735(i) (1973). See Sec. 13.4, infra, 
        for a discussion of approval of this rule.
12. Deutch v United States, 367 U.S. 456 (1961); this case reversed a 
        contempt conviction arising from an investigation of communist 
        party activities ``in the Albany area.'' The witness had 
        refused to answer certain questions relating to his communist 
        activities in Ithaca and at Cornell University, but, the court 
        noted, such locations are 165 miles from Albany and thus were 
        outside the scope of the committee's Iegitimate inquiry.
---------------------------------------------------------------------------

    To ascertain the subject under inquiry, the court in deciding the 
validity of a challenge to pertinence may look at (1) the authorizing 
resolution, (2) the remarks of the chairman and other members, (3) the 
nature of the proceedings, (4) the action of the committee by which a 
subcommittee investigation was authorized, and (5) the chairman's 
response to the witness, refusal to answer.(13) A court may 
also consider the historical usage of a particular procedure or 
inquiry:
---------------------------------------------------------------------------
13. Watkins v United States, 354 U.S. 178, 212, 213 (1957).
---------------------------------------------------------------------------

        Just as legislation is often given meaning by the gloss of 
    legislative reports, administrative interpretation, and long usage, 
    so the proper meaning of an authorization to a congressional 
    committee is not to be derived alone from its abstract terms 
    unrelated to the definite content furnished them by the course of 
    congressional actions.(14)
---------------------------------------------------------------------------
14. Barenblatt v United States, 360 U.S. 109, 117 (1959). See also 
        Wilkinson v. United States, 365 U.S. 399, 410 (1961).
---------------------------------------------------------------------------



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 7. --Intent of Witness

    A witness cannot be convicted for refusal to testify or produce 
documents unless his refusal is willful,(15) that is, a 
deliberate and intentional act,(16) which need not, however, 
involve moral turpitude (17) or a bad or evil purpose or 
motive.(18)
---------------------------------------------------------------------------
15. 2 USC Sec. 192; Quinn v United States, 349 U.S. 155, 165 (1955).
16. United States v Bryan, 339 U.S. 323 (1950).
17. Braden v United States, 365 U.S. 431 (1961).
18. Wheeldin v United States, 283 F2d 535 (9th Cir. 1960); cert. denied 
        366 U.S. 958 (1961); Fields v United States, 164 F2d 97, 100 
        (D.C. Cir. 1947). See Moreland, Allen B., Congressional 
        Investigations and Private Persons, 40 So. Cal. L. Rev. 189, 
        239-242, for a discussion of willfulness.
---------------------------------------------------------------------------

    Although a mistake of fact may in some cases justify a refusal to 
submit testimony or docu

[[Page 2355]]

ments,(19) a mistake of law, if deliberate and intentional, 
will not excuse such a refusal (20) even if based on advice 
of counsel.(1)
---------------------------------------------------------------------------
19. Townsend v United States, 95 F2d 352, 358 (D.C. Cir. 1938).
20. Watkins v United States, 354 U.S. 178, 208 (1957); Townsend v 
        United States, 95 F2d 352, 358 (D.C. Cir. 1938).
 1. Sinclair v United States, 279 U.S. 263, 299 (1929).
---------------------------------------------------------------------------

    In determining whether orders from a superior would justify a 
refusal to comply with a subpena, or whether such refusal constitutes 
willful behavior, courts have distinguished between a ``command to 
assume a position,'' which would shield the subordinate, and a mere 
ratification of a subordinate's ``continuous position of 
noncompliance,'' which would not.(2) In such a case, the 
validity of a defense that a person acted on orders of a superior would 
depend on whether the superior's order preceded the subordinate's 
refusal or the converse.
---------------------------------------------------------------------------
 2. United States v Tobin, 195 F Supp 588, 615 (D.D.C. 1961); reversed 
        on other grounds, 306 F2d 270 (D.C. Cir. 1962); cert. denied 
        371 U.S. 902 (1962).
---------------------------------------------------------------------------

    The element of willfulness has been discussed in two contexts, 
refusal to produce papers and refusal to answer questions. The Supreme 
Court held in one case that the government established a prima facie 
case of willful noncompliance by introducing evidence that the witness 
had been validly served with a lawful subpena duces tecum to produce 
organizational records under her custody and control and that she had 
intentionally refused to present them on the appointed 
day.(3) In a later case, the court found that a 
subcommittee's reasonable basis for believing that a witness could 
produce certain records, coupled with evidence of his failure to 
suggest his inability to produce them, supported an inference that he 
could have produced them and shifted the burden to the witness to 
explain or justify his refusal.(4)
    It has been further held that:
---------------------------------------------------------------------------
 3. United States v Bryan, 339 U.S. 323, 330 (1950).
 4. McPhaul v United States, 364 U.S. 372, 379 (1960).
---------------------------------------------------------------------------

        . . . anything short of a clear-cut default on the part of the 
    witness will not sustain a conviction for contempt of Congress. . . 
    . The witness is not required to enter into a guessing game when 
    called upon to appear before a committee. The burden is upon the 
    presiding officer to make clear the directions of the committee, to 
    consider any reasonable explanations given by the witness, and then 
    rule on the witness' response.(5)

---------------------------------------------------------------------------
 5. United States v Kamp, 102 F Supp 757, 759, 760 (D.D.C. 1952).
---------------------------------------------------------------------------

[[Page 2356]]

A court of appeals, adopting the above reasoning, established a 
procedure which requires a committee to propound a question, hear the 
refusal, rule that the refusal to answer is not satisfactory, and then, 
in time to allow an opportunity for answering, repeat the question to 
enable the witness either to purge himself and answer or stand on his 
original refusal to answer.(6) A contempt conviction, it has 
been said, cannot stand if a committee leaves a witness to speculate 
about the risk of possible prosecution and does not give him a clear 
choice between standing on his objection or complying with a committee 
ruling.(7) However, it has been further indicated that a 
conclusive presumption of intent to violate the statute might attach to 
a refusal even where that refusal was made without a statement at the 
time of the reason therefor.(8)
---------------------------------------------------------------------------
 6. Quinn v United States, 203 F2d 20, 33 (D.C. Cir. 1952), aff'd., 349 
        U.S. 155 (1955).
 7. Bart v United States, 349 U.S. 219, 223 (1955); Emspak v United 
        States, 349 U.S. 190, 202 (1955).
 8. Quinn v United States, 203 F2d 20, 33 (D.C. Cir. 1952), aff'd., 349 
        U.S. 155 (1955).
---------------------------------------------------------------------------



                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 8. --Procedural Regularity of Hearings

    A committee's failure to observe House rules or its own committee 
rules has been held to constitute a ground to reverse convictions for 
contempt or perjury. Whether a committee has complied with such rules 
became easier to ascertain after the House, on Mar. 23, 1955, adopted 
the Code of Fair Procedures which established certain procedural rights 
for witnesses and provided that ``the Rules of the House are the rules 
of its committees and subcommittees so far as applicable. . . .'' 
(9)
---------------------------------------------------------------------------
 9. The quotation is taken from Rule XI clause 27(a), House Rules and 
        Manual Sec. 735 (1973). See Sec. 13.1, infra, for a discussion 
        of adoption of the Code of Fair Procedures. See also Sec. 15, 
        infra, dealing with a related topic, the procedure for 
        determining whether information may tend to defame, degrade, or 
        incriminate a person.
---------------------------------------------------------------------------

    As an example of the requirement of compliance with procedural 
rules, a witness' conviction under a District of Columbia statute 
(10) which defined perjury as making false statements before 
a competent tribunal was reversed by the Supreme Court because the 
government at trial did not adduce evidence showing that a quorum of a 
committee was present when the statements alleged to be false were 
made.(11)

---------------------------------------------------------------------------
10. 22 D.C.C. 2501 (Mar. 3, 1901).
11. Christoffel v United States, 338 U.S. 84 (1949).
---------------------------------------------------------------------------

[[Page 2357]]

But presence of a quorum of the committee at the time of the return of 
the subpena was held not to be necessary for conviction under the 
contempt statute, 2 USC Sec. 192, for refusal to produce organizational 
records despite the fact that the witness could have demanded 
attendance of a quorum and refused to produce documents until a quorum 
appeared.(12)

---------------------------------------------------------------------------
12. United States v Bryan, 339 U. S. 323 (1950).
---------------------------------------------------------------------------

    A witness' objection or failure to object may affect the validity 
of an argument at trial. Although the witness' failure to object to the 
absence of a quorum was considered and did not waive his right to raise 
that objection at trial in Christoffel v United States,(13) 
the witness' failure to make the objection at the hearing when the 
situation could have been remedied was considered a reason to reject 
this contention at trial in United States v Bryan.(14)
---------------------------------------------------------------------------
13. See 338 U.S. 84, 88 (1949), for the statement of the majority that, 
        ``In a criminal case affecting the rights of one not a member, 
        the occasion of trial is an appropriate one for petitioner to 
        raise the question.''
14. See 339 U.S. 323, 333 (1950) in which the majority stated:
            ``The defect in the composition of the committee, if any, 
        was one which could easily have been remedied. But the 
        committee was not informed until the trial, two years after the 
        refusal to produce the records, that respondent sought to 
        excuse her noncompliance on the ground that a quorum of the 
        committee had not been present. . . . To deny the committee the 
        opportunity to consider the objection or remedy it is in itself 
        a contempt of its authority and an obstruction of its 
        processes.''
            The different treatment of the same issue, timeliness of 
        the objection, was explained by the majority as a consequence 
        of the fact that the contempt statute considered in Bryan, 2 
        USC Sec. 192, did not require a ``competent tribunal'' but the 
        D.C. perjury statute reviewed in Christoffel did. This 
        distinction was criticized by Mr. Justice Jackson who commented 
        in a concurring opinion, ``. . . I do not see how we can say 
        that what was timely for Christoffel is too late for Bryan.'' 
        (Bryan, at 344.)
            See also, United States v Fleischman, 339 U.S. 349 (1950); 
        reh. denied, 339 U.S. 991 (1950), for another contempt case 
        which held that the witness had waived the objection.
---------------------------------------------------------------------------

    In another contempt case, a court of appeals following Bryan held 
that a defendant who had been convicted of failure to answer questions 
before a congressional committee could not, on appeal, contend that a 
one-man subcommittee was not valid, inasmuch as he had failed to make 
the objection at the congressional hearing.(15)
---------------------------------------------------------------------------
15. Emspak v United States, 203 F2d 54 (D.C. Cir. 1952); reversed on 
        other grounds, 349 U.S. 190 (1955).
            Both the Bryan and Emspak cases predated Rule XI, clause 
        28(h), which 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.'' House 
        Rules and Manual Sec. 735(h) (1973); this clause, numbered 
        27(h) at the commencement of the 93d Congress 1st Session, was 
        numbered 28(h) at the end of that session. See Sec. 13.3, 
        infra, for a discussion of adoption of this rule.

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

[[Page 2358]]

    A subcommittee's initiation of an investigation of Communist Party 
activities in labor, without obtaining authorization from a majority of 
the full committee as required by committee rule, was held in another 
case to constitute a ground to reverse a contempt conviction for 
refusal to answer questions.(16)
---------------------------------------------------------------------------
16. Gojack v United States, 384 U.S. 702 (1966).
---------------------------------------------------------------------------



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 9. Rights of Witnesses Under the Constitution--Fifth Amendment

    In addition to meeting the requirements imposed by the contempt 
statute, discussed in preceding sections, congressional investigators 
must observe limits imposed by the Bill of Rights, particularly the 
first,(17) fourth,(18) and fifth amendments:
---------------------------------------------------------------------------
17. See Sec. 10, infra.
18. See Sec. 11, infra.
---------------------------------------------------------------------------

        The Bill of Rights is applicable to investigations as to all 
    forms of governmental action. Witnesses cannot be compelled to give 
    evidence against themselves. They cannot be subjected to 
    unreasonable search and seizure. Nor can the First Amendment 
    freedoms of speech, press, religion, or political belief and 
    association be abridged.(19)
---------------------------------------------------------------------------
19. Watkins v United States, 354 U.S. 178, 188 (1957). See also Liacos, 
        Rights of Witnesses before Congressional Committees, 33 B.U.L. 
        Rev. 337 (1953).
---------------------------------------------------------------------------

    The most extensive litigation has involved the fifth amendment. 
Availability of the privilege against self-incrimination in 
congressional investigations was established in 1879 when the House 
adopted a Judiciary Committee report stating that the fifth amendment 
provision, ``No person . . . shall be compelled in any criminal case to 
be a witness against himself. . . .'' could be invoked by a person in 
an investigation initiated with a view to impeach him, notwithstanding 
the fact that a congressional investigation is not a ``criminal case.'' 
(20) Because the government

---------------------------------------------------------------------------
20. See 3 Hinds' Precedents Sec. Sec. 1699 and 2514, for discussions of 
        the refusal of George C. Seward, former Counsel General at 
        Shanghai, China, to testify or produce subpenaed materials. See 
        also, Moreland, Allen B., Congressional Investigations and 
        Private Persons, 40 So. Cal. L. Rev. 189, 253-260 (1967); 
        Constitution of the United States of America: Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., pp. 91, 
        92 (1972); and Fisk, J., Compulsory Testimony of the 
        Congressional Witness and the Fifth Amendment, 15 Okla. L. Rev. 
        157 (1962), for discussions of the privilege against self-
        incrimination.
---------------------------------------------------------------------------

[[Page 2359]]

could not challenge the availability of the fifth amendment, it 
generally focused on the character of the answers sought and adequacy 
of the claim of the privilege.(1)

---------------------------------------------------------------------------
 1. Watkins v United States, 354 U.S. 178, 196 (1957); see also Quinn v 
        United States, 349 U.S. 155 (1955), Emspak v United States, 349 
        U.S. 190 (1955), Bart v United States, 349 U.S. 219 (1955), 
        which were cited in Watkins, at 196.
---------------------------------------------------------------------------

    Assertions of the fifth amendment privilege against self-
incrimination have been raised in reply to questions relating to a 
witness' own membership or his knowledge of another person's membership 
in subversive organizations. Thus, the Supreme Court held that 
Communist Party activity might tend to incriminate a person for 
violation of the Smith Act and that it was not necessary to show that 
the answers sought would support a conviction of crime, but only that 
they would furnish a link in the chain of evidence needed to prosecute 
a witness for violation of conspiracy to violate that 
act.(2) Moreover, because the government could not 
constitutionally convict persons for refusing to testify about 
potentially incriminating facts, a district court dismissed contempt 
charges against 19 witnesses who had asserted the fifth amendment and 
refused to answer questions relating to Communist Party membership and 
activities at a Honolulu hearing of the Committee on Un-American 
Activities.(3)
---------------------------------------------------------------------------
 2. Blau v United States, 340 U.S. 159 (1950).
 3. Applicability of the privilege against self-incrimination to 
        congressional hearings was recognized in United States v Yukio 
        Abe, 95 F Supp 991 (D.C.Hawaii 1950) in an opinion entered one 
        month prior to Blau v United States. The decision to dismiss 
        the indictments was not reported.
---------------------------------------------------------------------------

    An assertion of the privilege against self-incrimination does not 
have to take a particular form as long as the committee might 
reasonably be expected to understand it as an attempt to invoke the 
privilege.(4) Formulations held to be sufficient include: 
``the First Amendment to the Constitution, supplemented by the Fifth,'' 
(5) ``the First Amendment of the Con

---------------------------------------------------------------------------
 4. Quinn v United States, 349 U.S. 155 (1955).
 5. Id. at p. 164.
---------------------------------------------------------------------------

[[Page 2360]]

stitution supplemented by the Fifth Amendment,'' (6) 
primarily the First Amendment, supplemented by the Fifth.'' 
(7)

---------------------------------------------------------------------------
 6. United States v Fitzpatrick, 96 F Supp 491, 493 (D.D.C. 1951).
 7. Emspak v United States, 349 U.S. 190, 193, 197 (1955); this 
        statement was held to be sufficient notwithstanding the fact 
        that the witness, in response to the question, ``Is it your 
        feeling that to reveal your knowledge of them [certain 
        individuals about whose communist activities the witness had 
        been questioned] would subject you to criminal prosecution?'' 
        replied, ``No, I don't think this Committee has a right to pry 
        into my associations. That is my own position.'' Emspak, at 
        195, 196.
---------------------------------------------------------------------------

    Courts ``indulge every reasonable presumption against waiver of 
fundamental constitutional rights'' and refuse to interpret ambiguous 
statements as waivers of the privilege against self-
incrimination.(8) A witness may waive the privilege by 
failing to assert it,(9) expressly disclaiming 
it,(10) or testifying on the same matters concerning which 
he later claims the privilege.(11) However, because the 
privilege attaches to a witness in each particular case in which he is 
called to testify, without reference to his declarations at some other 
time or place or in some other proceeding, it was held not to be waived 
when a witness verified allegations in prior litigation (12) 
or answered the same questions several years prior to committee 
interrogation when interviewed by an agent of the Federal Bureau of 
Investigation.(13)
---------------------------------------------------------------------------
 8. Emspak v United States, 349 U.S. 190 (1953).
 9. Id.
10. Hutcheson v United States, 369 U.S. 599, 609 (1962).
11. Rogers v United States, 340 U.S. 367 (1951); Presser v United 
        States, 238 F2d 233 (1960); cert. denied, 365 U.S. 316 (1960); 
        rein. denied, 365 U.S. 858 (1960).
12. Poretto v United States, 196 F2d 392 (5th Cir. 1952).
13. Marcello v United States, 196 F2d 437 (5th Cir. 1952).
---------------------------------------------------------------------------

    Furthermore, a witness does not waive the privilege by giving 
answers which do not constitute an admission or proof of any 
crime.(14)
---------------------------------------------------------------------------
14. United States v Costello, 198 F2d 200, 202 (2d Cir. 1952).
---------------------------------------------------------------------------

    An insight into availability of the privilege may be gained by 
reviewing its purpose and permissible uses:

        Privilege . . . may not be used as a subterfuge.
        The privilege may only be asserted when there is reasonable 
    apprehension on the part of the witness that his answers would 
    furnish some evidence upon which he could be convicted of a 
    criminal offense against the United States or which would lead to a 
    prosecution of him for such offense, or

[[Page 2361]]

    which would reveal sources from which evidence could be obtained 
    that would lead to such conviction or to prosecution therefor.
        A witness is not bound to explain why answers to apparently 
    innocent questions might tend to incriminate him when circumstances 
    render such reasonable apprehension evident. Once it has become 
    apparent that the answers to a question would expose a witness to 
    the danger of conviction or prosecution, wider latitude is 
    permitted the witness in refusing to answer other questions upon 
    the ground that such answers would tend to incriminate 
    him.(15)
---------------------------------------------------------------------------
15. United States v Jaffee, 98 F Supp 191 (D.D.C. 1951). See also, 
        Moreland, Allen B., Congressional Investigations and Private 
        Person, 40 So. Cal. L. Rev. 189, 258, 259 (1967) for a 
        discussion of the scope of coverage of the privilege.
---------------------------------------------------------------------------

    Consequently, availability of the privilege is affected more by the 
context in which the question is asked and the underlying circumstances 
than by the nature of the question. In the application of this 
principle, a witness was not permitted to assert the privilege in 
response to questions relating to his place of residence and other 
preliminary data in the absence of a showing that elements of 
incrimination might attach to that information; (16) in 
another case, however, the privilege was held to be properly asserted 
in response to a question as to whether the witness knew any 
individuals who had been listed in an investigating committee's interim 
report which referred to such individuals as possibly involved in 
organized crime.(17)
---------------------------------------------------------------------------
16. Simpson v United States, 241 F2d 222 (9th Cir. 1957).
17. Aiuppa v United States, 201 F2d 287 (6th Cir. 1952).
---------------------------------------------------------------------------

    Similarly, a witness was permitted to refuse to answer a question 
as to his employment record because the question was asked ``in a 
setting of possible incrimination.'' (18) And a witness with 
a criminal record was said to have properly invoked the fifth amendment 
in response to all questions except his name and address before a 
Senate committee investigating crime.(19)
---------------------------------------------------------------------------
18. Jakins v United States, 231 F2d 405 (9th Cir. 1956).
19. Marcello v United States, 196 F2d 437 (5th Cir. 1952).
---------------------------------------------------------------------------

    After testifying to an incriminating fact, a witness may not refuse 
to answer more questions on the same subject on the ground that such 
answers would further incriminate. Thus, after a witness testified that 
she had been treasurer of the Communist Party in Denver, she could not 
invoke the privilege against self-incrimination when asked the name of 
the person to whom she had given or

[[Page 2362]]

ganizational records. The majority of the Supreme Court reasoned that 
upholding a claim of privilege in such a case would invite distortion 
of facts by permitting the witness to select any stopping place in 
testimony.(20)
---------------------------------------------------------------------------
20. See Rogers v United States, 340 U.S. 367 (1951) which involved 
        questioning before a grand jury.
---------------------------------------------------------------------------

    A witness who responded that he had complied to the best of his 
ability with a subpena and had made available all records he possessed 
at the time of service was held to have waived the privilege against 
self-incrimination; this waiver applied to a question relating to 
whether he had destroyed any of the subpenaed records since the time of 
service.(1)
---------------------------------------------------------------------------
 1. Presser v United States, 384 F2d 233 (D.C. Cir. 1960), cert. 
        denied, 365 U.S. 816 (1960); rein. denied, 365 U.S. 855 (1960).
---------------------------------------------------------------------------

    A witness who admitted attending a meeting of the Communist Party 
but denied that he was a member was not permitted to invoke the 
privilege against self-incrimination in response to questions asking 
him to identify other persons present at that meeting.(2)
---------------------------------------------------------------------------
 2. United States v Singer, 139 F Supp 847 (D.D.C. 1956); aff'd. Singer 
        v United States, 244 F2d 349 (D.C. Cir. 1957); rev'd. on other 
        grounds on reh., 247 F2d 535 (1957).
---------------------------------------------------------------------------

    Under Part V of the Organized Crime Control Act of 
1970,(3) any witness who refuses on the basis of his 
privilege against self-incrimination to testify or provide information 
may be granted immunity by court order based upon the affirmative vote 
either of a majority present before either House of Congress or two-
thirds of the members of a full committee for a proceeding before a 
committee, subcommittee, or joint committee. Furthermore, the Attorney 
General must be served with notice of the intention to request the 
order 10 or more days prior to making it. When these conditions are met 
and a duly appointed member of the House or committee concerned makes 
the request, a U.S. district court shall issue the order requiring the 
witness to testify or provide the information. Issuance of the order 
may be deferred not longer than 20 days from the date of the request 
upon application of the Attorney General. The effect of such an order 
is to compel the witness to testify or provide the information by 
immunizing him from use in a criminal trial not only of tes

---------------------------------------------------------------------------
 3. 84 Stat. 926; 18 USC Sec. Sec. 6002, 6005. The previous immunity 
        statute, the Compulsory Testimony Act of 1954, codified at 18 
        USC Sec. 3486 (1964), as amended, 18 USC Sec. 3486 (1965), 
        which applied to any investigation relating to national 
        security or defense, was repealed. See also 6 Cannon's 
        Precedents Sec. 354, for a discussion of earlier cases on 
        immunity.
---------------------------------------------------------------------------

[[Page 2363]]

timony or other information compelled under the order, but also any 
information directly or indirectly derived from such testimony or 
information.

    A witness may intervene in a proceeding to grant immunity to 
contest the issuance of the order on the ground that the procedure 
prescribed by the statute has not been followed. Nonetheless, a witness 
may not challenge the committee's scope of inquiry, pertinence of 
questions propounded, or constitutionality of the statute, because the 
discretion of the district court in an immunity hearing does not 
encompass these issues.(4)
---------------------------------------------------------------------------
 4. In re McElrath, 248 F2d 612 (D.C Cir. 1957); this case arose under 
        18 USC Sec. 3486, which has been repealed.
---------------------------------------------------------------------------

    The present immunity statute (5) has been interpreted to 
require the court to make sure of compliance with established 
procedures, but does not authorize discretion to determine the 
advisability of granting immunity or impose conditions on such a 
grant.(6)
---------------------------------------------------------------------------
 5. 18 USC Sec. 6005.
 6. Application of U.S. Senate Select Committee on Presidential 
        Campaign Activities, 361 F Supp 1270 (D.C. 1973).
---------------------------------------------------------------------------



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 10. --First Amendment

    Claims involving freedom of association, belief, expression, and 
petition under the first amendment have sometimes been asserted in 
cases arising out of congressional investigations, though such claims 
are less frequent than those involving the privilege against self-
incrimination.(7) The Supreme Court has recognized the 
applicability of the first amendment to investigations:
---------------------------------------------------------------------------
 7. See, for example, Moreland, Allen B., Congressional Investigations 
        and Private Persons, 40 So. Cal. L. Rev. 189, 260-265 (1967), 
        and Bendich, A. M., First Amendment Standards for Congressional 
        Investigations, 51 Calif. L. Rev. 267 (1963), for discussion of 
        the First Amendment.
---------------------------------------------------------------------------

        Clearly an investigation is subject to the command that the 
    Congress shall make no law abridging freedom of speech or press or 
    assembly. While it is true that there is no statute to be reviewed, 
    and that an investigation is not a law, nevertheless an 
    investigation is part of lawmaking. It is justified solely as an 
    adjunct to the legislative process. The First Amendment may be 
    invoked against infringement of the protected freedoms by law or by 
    rule-making.(8)
---------------------------------------------------------------------------
 8. Watkins v United States, 354 U.S. 178, 197 (1957); see note 31, 
        inserted at this point in the Watkins opinion, which listed 
        other cases supporting this principle, including United States 
        v Rumely, 345 U.S. 41, 43 (1953); Lawson v United States 176 
        F2d 49, 51, 52 (D.C. Cir. 1949); Barsky v United States, 167 
        F2d 241, 244-250 (D.C. Cir. 1948), cert. denied 334 U.S. 843 
        (1948); and United States v Josephson, 165 F2d 82, 90-92 (2d 
        Cir. 1947), cert. denied 333 U.S. 858 (1948).

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

[[Page 2364]]

    In determining whether to accept a first amendment claim in a 
particular instance, courts balance the witness' right of privacy 
against the government's need to obtain the information:

        Accommodation of the congressional need for particular 
    information with the individual and personal interest in privacy is 
    an arduous and delicate task for any court. . . . It is manifest 
    that despite the adverse effects which follow upon compelled 
    disclosure of private matters, not all such inquiries are barred. . 
    . . The critical element is the existence of, and the weight to be 
    ascribed to, the interest of the Congress in demanding disclosures 
    from an unwilling witness.(9)
---------------------------------------------------------------------------
 9. Watkins v United States, 354 U.S. 178, 198 (1957).
---------------------------------------------------------------------------

        Undeniably, the First Amendment in some circumstances protects 
    an individual from being compelled to disclose his associational 
    relationships. However, the protections of the First Amendment, 
    unlike a proper claim of the privilege against self-incrimination 
    under the Fifth Amendment, do not afford a witness the right to 
    resist inquiry in all circumstances. Where First Amendment rights 
    are asserted to bar governmental interrogation, resolution of the 
    issue always involves a balancing by the courts of the competing 
    private and public interests at stake in the particular 
    circumstances shown.(10)
---------------------------------------------------------------------------
10. Barenblatt v United States, 360 U.S. 109, 126 (1959).
---------------------------------------------------------------------------

    The decision to use a balancing test followed several developments 
in earlier cases. For example, courts refused to apply the ``clear and 
present danger'' rule, the traditional first amendment test, to 
congressional inquiries because such inquiries help determine the 
existence of a danger to national security and possible responses to 
such a danger; (11) not allowing Congress to investigate a 
potential danger until it had become ``clear and present'' would be 
``absurd'' and impair the ability to respond.(12) Thus, for 
example, the power to inquire into whether a subpenaed witness was a 
member of the Communist Party or a believer in its principles received 
judicial approval.(13)
---------------------------------------------------------------------------
11. United States v Josephson, 165 F2d 82 (2d Cir. 1947), cert. denied 
        333 U.S. 858 (1948).
12. Barsky v United States, 167 F2d 241, 246, 247 (D.C. Cir. 1948), 
        cert. denied 334 U.S. 843 (1948); reh. denied 339 U.S. 971, 972 
        (1950).
13. Lawson v United States, 176 F2d 49, 52 D.C. Cir. 1949).
            In a later case, the right to petition and freedom of 
        persons who had actively criticized the actions of the 
        Committee on Un-American Activities were not deemed to have 
        been infringed when the committee subpenaed them to testify 
        about their activities in the Communist Party. Braden v United 
        States, 365 U.S. 431 (1961); Wilkinson v United States, 365 
        U.S. 399 (1961).

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

[[Page 2365]]

    The revision of the doctrine of presumption of legislative purpose 
and the recognition of the need for a lucid expression of 
authorization,(14) as well as imposition of the requirement 
that the delegation of power to investigate must be clearly revealed in 
the committee's authorizing resolution whenever first amendment rights 
are threatened, contributed to adoption of the balancing 
test.(15)
---------------------------------------------------------------------------
14. United States v Rumely, 345 U.S. 41 (1953).
15. Watkins v United States, 354 U.S. 178 (1937).
---------------------------------------------------------------------------

    One formulation of the test to be applied by courts is the 
following, from a case which found an infringement of first amendment 
rights:

        [I]t is an essential prerequisite of the validity of an 
    investigation which intrudes into the area of constitutionally 
    protected rights of speech, press, association, and petition that 
    the State convincingly show a substantial relation between the 
    information sought and a subject of overruling and compelling state 
    interest.(16)
---------------------------------------------------------------------------
16. Gibson v Florida Legislative Committee, 372 U.S. 539, 546 (1963).
---------------------------------------------------------------------------

    But it should be remembered that one consequence of the balancing 
test is a general reluctance to interfere with pending congressional 
investigations on the ground that the witness may present first 
amendment claims before the committee or subcommittee, before the House 
or Senate, at trial, and on appeal.(17) Accordingly, courts 
will not interfere with legislative investigations unless the threat 
posed thereby to first amendment freedoms is sufficiently compelling 
and concrete, and the witness would be denied a remedy in the absence 
of such intervention.(18)
---------------------------------------------------------------------------
17. See, for example, Sanders v McClellan, 463 F2d 894 (D.C. Cir. 
        1972); Ansara v Eastland, 442 F2d 751 (D.C. Cir. 1971); Shelton 
        v United States, 404 F2d 1292 (D.C. Cir. 1968) cert. denied 393 
        U.S. 1024 (1969) and Pauling v Eastland, 288 F2d 126 (D.C. Cir. 
        1960). But see Stamler v Willis, 415 F2d 1365 (7th Cir. 1969), 
        cert. denied sub. nom. Ichord v Stamler, 399 U.S. 929 (1970), 
        which held that witnesses against whom criminal charges for 
        contempt were pending could, nonetheless, challenge alleged 
        committee infringements on free expression in a civil action.
18. See, for example, Pollard v Roberts, 393 U.S. 14 (1968), per curiam 
        affirmance of the three judge District Court for the Eastern 
        District of Arkansas, 283 F Supp 248 (1968); Gibson v Florida 
        Legislative Committee, 373 U.S. 539 (1963); Louisiana ex rel. 
        Germillion v NAACP, 366 U.S. 293 (1961); Bates v Little Rock, 
        361 U.S. 516 (1960); NAACP v Alabama, 357 U.S. 449 (1958); 
        Sweezy v New Hampshire, 354 U.S. 234 (1957), which involve 
        infringements of the right of association by states; they did 
        not arise as contempt proceedings from congressional 
        investigations.

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

[[Page 2366]]



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 11. --Fourth Amendment

    The fourth amendment prohibition against unreasonable searches and 
seizures applies to congressional investigations.(19) A 
court of appeals made an unequivocal statement to this effect:
---------------------------------------------------------------------------
19. Watkins v United States, 354 U.S. 178, 188 (1957). See also 
        Moreland, Allen B., Congressional Investigations and Private 
        Persons, 40 So. Cal. L. Rev. 189, 225-230 (1967).
---------------------------------------------------------------------------

        The Fourth Amendment exempts no branch of the federal 
    government from the commandment that ``The right of the people to 
    be secure in their persons, houses, papers, and effects, against 
    unreasonable searches and seizures, shall not be violated. . . .'' 
    This constitutional guaranty applies with equal force to executive, 
    legislative and judicial action. Courts and committees rightly 
    require answers to questions. But neither may exert this power to 
    extort assent in invasions of homes and to seizures of private 
    papers. Assent so extorted is no substitute for lawful 
    process.(20)
---------------------------------------------------------------------------
20. Nelson v United States, 208 F2d 505 (D.C. Cir. 1953), cert. denied 
        346 U.S. 827 (1953).
---------------------------------------------------------------------------

    The Supreme Court in one case held that the counsel to a Senate 
subcommittee who allegedly conspired with state officials to seize 
property and records by unlawful means in violation of the fourth 
amendment was not entitled to immunity under the Speech or Debate 
Clause and would have to appear as a defendant in a civil action and, 
if found liable, pay damages. However, the chairman of the subcommittee 
who had also been named as a party defendant was entitled to the 
immunity.(1)
---------------------------------------------------------------------------
 1. Dombrowski v Eastland, 387 U.S. 82 (1967).
---------------------------------------------------------------------------

    Lower courts have adjudicated the validity of subpenas issued by 
committees. For example, the Supreme Court of the District of Columbia 
held that a Senate subpena duces tecum requiring Western Union to 
supply all copies of all telegrams sent or received by a law firm for a 
10-month period in 1935 exceeded any legitimate exercise of the subpena 
power.(2)
---------------------------------------------------------------------------
 2. Strawn v Western Union, 3 USL Week 646 (SCDC, Mar. 11, 1936).
---------------------------------------------------------------------------

    Similarly, a federal district court expressed its view of a subpena 
duces tecum which specified ``the minute books, contracts, reports, 
documents, books of account, etc., either belonging to the relator or 
to the Railway Audit and Inspection Company, Inc., with which he was 
connected'' in the following manner:

        [T]he subpena on its face, shows a mere fishing expedition into 
    the private affairs of the relator and his company, not within the 
    scope of the com

[[Page 2367]]

    mittee's investigation, and an encroachment upon defendant's rights 
    under the Fourth Amendment. . . . The duces tecum part of the 
    subpena is so lacking in specification and description, and so wide 
    in its demands, that it is felt it could not have been ordered had 
    the application for it been made to this court.(3)
---------------------------------------------------------------------------
 3. United States v Groves, 18 F Supp 3 (W.D. Pa. 1937); because the 
        case was decided on the point of failure to appear before the 
        committee, the statement relating to the subpena was dictum.
---------------------------------------------------------------------------

    Although courts refuse to enforce subpenas which they find to be 
overbroad, they refuse to limit a committee's use of information in its 
possession. After telegraph companies refused to comply with a Senate 
committee's subpena duces tecum directing them to produce all telegrams 
transmitted from their offices from Feb. 1 to Sept. 1 of 1935, 
representatives of the committee and the Federal Trade Commission 
examined these messages and made notes and copies. Conceding that a 
court could enjoin this ``trespass'' while it was being conducted, a 
court of appeals stated that it lacked authority to enjoin use of the 
material after the committee had gained possession.(4)
---------------------------------------------------------------------------
 4. Hearst v Black, 87 F2d 68, 71 (D.C. Cir. 1936).
---------------------------------------------------------------------------

    A subpena for documents held in a representative capacity need not 
be as specific as one for documents belonging to an individual. Thus, a 
subpena directing production of ``All records, correspondence and 
memoranda of the Civil Rights Congress relating to: . . . (1) the 
organization of the group; (2) its affiliation with other 
organizations; and (3) all monies received or expended by it,'' did not 
constitute ``unreasonable search and seizure.'' (5)
---------------------------------------------------------------------------
 5. McPhaul v United States, 364 U.S. 372, 381 (1960); compare McPhaul 
        with United States v Groves, 18 F Supp 3 (W.D. Pa. 1937), note 
        supra, which discusses a subpena for papers which belong to an 
        individual.
---------------------------------------------------------------------------



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 12. --Sixth Amendment

    Because the language of the sixth amendment stipulates its 
application ``In all criminal prosecutions,'' the amendment does not 
apply directly to congressional investigations. Consequently, a witness 
is not entitled to confront or cross-examine witnesses.(6) 
But

---------------------------------------------------------------------------
 6. United States v Fort, 443 F2d 670 (D.C. Cir. 1970), cert. denied, 
        403 U.S. 932 (1971). Fort, however, cites examples of granting 
        a limited right of self-examination (p. 680 and n. 24). See 
        also Hannah v Larche, 363 U.S. 420 (1960), in which the Supreme 
        Court by analogy approved state legislative committee rules 
        which denied the rights of confrontation and cross-examination, 
        in that the court sustained the rules of the Commission on 
        Civil Rights which did not grant these rights in fact-finding 
        investigations.
---------------------------------------------------------------------------

[[Page 2368]]

the rules of the House take cognizance of rights included in the sixth 
amendment, including right to counsel and compulsory process. Thus, a 
witness may be accompanied by his own counsel for the purpose of 
advising him of his constitutional rights.(7) Furthermore, 
if a committee determines that evidence or testimony at an 
investigative hearing may tend to defame, degrade, or incriminate any 
person, such person is entitled to request that additional witnesses be 
subpenaed.(8) Where the committee does not determine that 
evidence or testimony may defame, degrade, or incriminate any person, 
the chairman receives and the committee disposes of requests to subpena 
additional witnesses.(9)

-------------------------------------------------------------------------
 7. Rule XI clause 28(k), House Rules and Manual Sec. 735(k) (1973). 
        See Sec. 14, infra, for precedents dealing with the right to 
        counsel.
 8. Rule XI clause 28(m), House Rules and Manual Sec. 735(m) (1973). 
        See Sec. 15, infra, for a discussion of the effect of 
        derogatory information.
 9. Rule XI clause 28(n), House Rules and Manual Sec. 735(n) (1973). 
        See Sec. 13.6, infra, for a discussion of adoption of this 
        rule.
---------------------------------------------------------------------------

    Although sixth amendment procedural guarantees do not apply to 
investigative proceedings, they apply to the criminal proceedings 
brought as a result of them. A court of appeals reversed a contempt 
conviction on the ground that the question the witness refused to 
answer, whether he had been a ``member of a Communist conspiracy,'' 
lacked the definiteness required by the sixth amendment provision, ``In 
all criminal prosecutions, the accused shall enjoy the right . . . to 
be informed of the nature and cause of the accusation. . . .'' 
(10) A count of an indictment charging that a witness 
committed perjury before a congressional committee when he denied that 
he had ever been ``a sympathizer or any other kind of promoter of 
Communism or Communist interests'' was held void for vagueness under 
the sixth amendment.(11)
---------------------------------------------------------------------------
10. O'Connor v United States, 240 F2d 404 (D.C. Cir. 1956).
11. United States v Lattimore, 215 F2d 847 (D.C. Cir. 1954).
---------------------------------------------------------------------------



 
                               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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).

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

[[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.
---------------------------------------------------------------------------
 1. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

             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)
---------------------------------------------------------------------------
 2. This provision is discussed at Sec. 13.3, infra.
---------------------------------------------------------------------------

            ``(i) The chairman at an investigative hearing shall 
        announce in an opening statement the subject of the 
        investigation.(3)
---------------------------------------------------------------------------
 3. This provision is discussed at Sec. 13.4, infra.
---------------------------------------------------------------------------

            ``(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)
---------------------------------------------------------------------------
 4. This provision is discussed at Sec. 13.7, infra.
---------------------------------------------------------------------------

            ``(k) Witnesses may be accompanied by their own counsel for 
        the purpose of advising them concerning their constitutional 
        rights.(5)
---------------------------------------------------------------------------
 5. This provision is discussed at Sec. 14.1, infra.
---------------------------------------------------------------------------

            ``(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)
---------------------------------------------------------------------------
 6. This provision is discussed at Sec. 13.5, infra.
---------------------------------------------------------------------------

            ``(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)
---------------------------------------------------------------------------
 7. This provision is discussed at Sec. 15.1, infra.
---------------------------------------------------------------------------

            ``(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)
---------------------------------------------------------------------------
 8. This provision is discussed at Sec. 13.9, infra.
---------------------------------------------------------------------------

            ``(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)
---------------------------------------------------------------------------
 9. This provision is discussed at Sec. 13.10, infra.
---------------------------------------------------------------------------

            ``(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)
---------------------------------------------------------------------------
10. This provision is discussed at Sec. 13.8, infra.
---------------------------------------------------------------------------

        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].
---------------------------------------------------------------------------
11. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
12. 101 Cong. Rec. 3569-71, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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

---------------------------------------------------------------------------
17. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

[[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.''
---------------------------------------------------------------------------
18. See House Rules and Manual Sec. 735(h) (1973).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
19. 101 Cong. Rec. 3569, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
20. 101 Cong. Rec. 3571, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
21. This ``power'' is the constitutional mandate, `` Each House may 
        determine the Rules of its Proceedings . . .'' Art. I, Sec. 5 
        clause 2.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 1. 101 Cong. Rec. 3570, 3573, 3582,84th Cong. 1st Sess.
---------------------------------------------------------------------------

        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.



 
                               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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
15. Yellin v United States, 374 U.S. 109, 112, 113 
        (1963).                          -------------------
---------------------------------------------------------------------------

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
---------------------------------------------------------------------------
16. 101 Cong Rec. 3569, 3585, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

[[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)

---------------------------------------------------------------------------
17. See House Rules and Manual Sec. 735(k) (1973).
18. 101 Cong Rec. 3569, 3572, 3582, 3583, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
19. 101 Cong. Rec. 3582, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        [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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

        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

[[Page 2388]]

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 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.

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

[[Page 2390]]



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 15. Effect of Derogatory Information

    In 1955, the House amended its rules to prescribe the procedures to 
be followed upon a determination that evidence at a hearing ``may tend 
to defame, degrade, or incriminate a person.'' The provisions of the 
rule, and their application, are discussed in detail in succeeding 
sections.(11)
---------------------------------------------------------------------------
11. See Sec. 15.1, infra, for a discussion of the rule and its 
        adoption. See Sec. Sec. 15.215.6, infra, for application of 
        particular provisions.
---------------------------------------------------------------------------

    The three requirements of the rule are cumulative and 
mandatory.(12) Thus, a committee, upon determining that 
evidence adduced at an investigative hearing may tend to defame, 
degrade, or incriminate a person, must (1) receive the evidence in 
executive session; (2) afford the person an opportunity to appear 
voluntarily as a witness; and (3) receive and dispose of requests from 
such a person to subpena additional witnesses.
---------------------------------------------------------------------------
12. See the ruling of the Chair set forth in Sec. 15.4, infra.
---------------------------------------------------------------------------

    If a committee affords a witness the opportunity to appear 
voluntarily to testify in executive session and that opportunity is 
ignored by the witness, the committee cannot thereafter proceed as if 
it had fully complied with the rule but must issue a subpena and comply 
with all other requirements of the rule. However, if the witness 
thereafter appears in response to a subpena and, when called, asks for 
an executive session, the committee must determine, as provided by the 
rule, whether the testimony will tend to defame, degrade, or 
incriminate. If the committee determines that the evidence will not so 
tend, it may then proceed in open session.(13)
---------------------------------------------------------------------------
13. See the proceedings discussed in Sec. 15.6, infra. See also 112 
        Cong. Rec. 27506, 89th Cong. 2d Sess., Oct. 18, 1966.
---------------------------------------------------------------------------

    Although the rule was intended to apply to third parties rather 
than witnesses,(14) it has been the subject of points of 
order relating to rights of witnesses.(15)
---------------------------------------------------------------------------
14. See Sec. 15.1, infra.
15. See Sec. Sec. 15.2-15.6, infra.          ----------------------------------------------------------------------------

In General

Sec. 15.1 As part of the Code of Fair Procedures, the House amended the 
    rules to provide that, ``If the committee determines that evidence 
    or testimony at an investigative hearing may tend to defame, 
    degrade, or incriminate a person, it shall (1) receive

[[Page 2391]]

    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.''

    On Mar. 23, 1955,(16) the House by voice vote approved 
House Resolution 151, known as the Code of Fair Procedures, which 
included a provision providing safeguards to be followed in the 
reception of derogatory testimony.(17)
---------------------------------------------------------------------------
16. 101 Cong. Rec. 3569, 3585, 84th Cong. 1st Sess.
17. See House Rules and Manual Sec. 735(m) (1973).
---------------------------------------------------------------------------

    Commenting on this provision, the Chairman of the Committee on 
Rules, Howard W. Smith, of Virginia, stated 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.(18) The effects of this provision were further 
discussed: (19)
---------------------------------------------------------------------------
18. 101 Cong. Rec. 3569, 84th Cong. 1st Sess.
19. 101 Cong. Rec. 3572, 3573, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Clarence J.] Brown of Ohio: . . . Then if the committee 
    determines that evidence or testimony at an investigative hearing 
    may tend to defame, degrade, or incriminate any person, this 
    resolution provides that it shall receive such testimony in 
    executive session; that is, if it is possible to do so, they may go 
    immediately into executive session. They shall afford such person 
    an opportunity voluntarily to appear as a witness to refute such 
    statements or testimony against him; and it shall receive and 
    dispose of requests from such a person to subpena additional 
    witnesses. Those rights are given to the witness. . . .
        Mr. [James C.] Murray of Illinois: We had considerable 
    discussion when another bill was up today concerning the meaning of 
    the words ``shall'' and ``may.'' I notice in line 16 on page 2, it 
    says with reference to testimony that may tend to defame, degrade, 
    or incriminate a person that the committee shall do so and so. Is 
    that mandatory or is it permissive?
        Mr. Brown of Ohio: Where it finds that it may tend to defame, 
    degrade, or incriminate a person, it shall do so and so; it shall 
    receive such evidence and testimony until it satisfies itself 
    whether it is true.
        Mr. Murray of Illinois: Is that mandatory?
        Mr. Brown of Ohio: Yes, that is mandatory, in my opinion. They 
    shall afford such person who had been defamed the right voluntarily 
    to come before the committee and refute it, which is a fair thing 
    and a procedure which practically all the committees of the House 
    now follow.
        Mr. [Porter] Hardy [Jr., of Virginia]: Mr. Speaker, will the 
    gentleman yield?
        Mr. Brown of Ohio: I yield to the gentleman from Virginia.

[[Page 2392]]

        Mr. Hardy: On that particular point, the discussion centers 
    around whether or not the testimony would tend to degrade or 
    intimidate the witness. That is what the section says.
        Mr. Brown of Ohio: The gentleman reads into it something that 
    is not in there. It says ``degrade any person.''
        Mr. Hardy: That is exactly my point. It would mean, then, that 
    if a committee held an executive session and determined that they 
    were going to receive testimony which would indicate that an 
    individual not the witness had misappropriated Government property, 
    for instance, under this language it could not hold that testimony 
    in open session.
        Mr. Brown of Ohio: That is right. If I charge you with being a 
    thief, the committee goes into executive session to explore as to 
    whether or not I have any justification for that charge and you 
    have the right to answer it. Then, if they determine that there is 
    some ground for my charge against you, they can have all the open 
    sessions they want to have.
        Mr. Hardy: Is there anything in here that shows that you can 
    open that hearing up?
        Mr. Brown of Ohio: Certainly, because it provides only the two 
    things they shall do in such circumstances. . . .
        Mr. [Edwin E.] Willis [of Louisiana]: That provision under 
    discussion refers to a person not on the stand?
        Mr. Brown of Ohio: That is right.
        Mr. Willis: It refers to defaming third parties, not the man on 
    the stand?
        Mr. Brown of Ohio: That is right.
        Mr. Hardy: I understand that, but suppose you have a situation 
    that clearly shows that there has been abuse?
        Mr. Brown of Ohio: What does it say here? They consider that in 
    executive session, then they come back into open session after they 
    have got the information and, if they decide there is some 
    substance to your charge, or my charge against you, then they can 
    go ahead and have all the open hearings they want.
        Mr. Hardy: They can have all the open hearings they want, then.
        Mr. Willis: I think this is important. The controlling part of 
    that particular section is that ``If the committee determines,'' 
    then such and such happens.
        Mr. Brown of Ohio: That is right.
        Mr. Willis: But the determination must be made first.
        Mr. Brown of Ohio: It rests entirely with the committee.
        Mr. Hardy: The gentleman is absolutely correct. It is only 
    where the person is brought up for the first time and when the 
    committee determines that the matter should be gone into; then you 
    can have all the public hearings you want.
        Mr. Brown of Ohio: If they think the man has been defamed. If I 
    say you are a Communist and the evidence shows you are not, then I 
    have not told the truth. The committee determines whether or not 
    you have been defamed.
        Mr. Hardy: That is exactly right. Then you can have all the 
    public hearings you want.
        Mr. Smith of Virginia: Mr. Speaker, I yield 5 minutes to the 
    gentleman from Georgia [Mr. Forrester].

[[Page 2393]]

        Mr. [Elijah L.] Forrester [of Georgia]: . . . With regard to 
    the particular portion which was inquired about by the gentleman 
    from Virginia [Mr. Hardy], the answer given by the gentleman from 
    Ohio [Mr. Brown] is absolutely correct. All on earth this provision 
    does is that if a man's name is brought up before a committee for 
    the first time, you go into executive session and you somewhat 
    simulate the action of a grand jury. That is a fair provision.
        Mr. [Edward T.] Miller of Maryland: Mr. Speaker, will the 
    gentleman yield?
        Mr. Forrester: I yield.
        Mr. Miller of Maryland: I share the view of the gentleman from 
    Virginia that that may be the intention, but certainly the language 
    here does not indicate how it would be possible to bring out 
    evidence that you knew was going to degrade somebody except in 
    executive session. I do not see any language here that permits 
    that.
        Mr. Forrester: No matter where it is brought out, if it is in 
    executive session, then, of course, you can deal with it, but if it 
    is in public session, then you simply suspend and go into executive 
    session and determine whether or not there is a reason to expose 
    that man's name publicly. That is a right which the Congress should 
    be the first to concede to any person. . . .

    This clause aroused some criticism, as shown in the remarks 
below:(20)
---------------------------------------------------------------------------
20. 101 Cong. Rec. 3573, 3583, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. Hardy: I am in complete accord with the objectives of the 
    committee, and I congratulate the committee on attempting to deal 
    with a very difficult problem. However, I think that subsection 
    (m), as now written, will hamper every investigation that is ever 
    undertaken.
        Mr. Forrester: I do not think so. * * *
        Mr. [Kenneth B.] Keating [of New York]: * * * I am also puzzled 
    and troubled a little about subparagraph (m) and the way it is 
    intended to work. In the first place, it specifies that ``if the 
    committee determines'' that certain evidence or testimony is 
    defamatory, degrading, or incriminating, it must then hear the same 
    in executive session--but in order for the committee to make such a 
    determination it would appear that some consideration of the 
    evidence or testimony would already have to have taken place. So I 
    wonder if the requirement is not self-defeating, in that the harm 
    would be done before the committee would ever be in a position to 
    provide the intended protection.
        In passing, I should also like to raise a grave question about 
    this matter of executive sessions. Undoubtedly, it is a good and 
    desirable thing to create a right, at least in limited 
    circumstances, for a person who is likely to be injured by 
    testimony to have the testimony taken at a secret hearing. I favor 
    that, if some practical way to accord it without tying the 
    committee's hands can be worked out.
        But I am also persuaded that there is, as a practical 
    possibility at least, a considerable danger of abuse in the other 
    direction, namely, a danger that the secret hearing may also be 
    used as a truly terrible reincarnation of the star chamber. If a 
    hostile and unwill

[[Page 2394]]

    ing witness is forced to submit to lengthy examination, under oath 
    and on record, in a secret session, he can be put at a terrible 
    disadvantage when the committee later raises the curtain and 
    conducts the interrogation again publicly. He is bound to 
    everything he said, at the peril of imminent prosecution for 
    perjury, and his interrogators are able to pick and choose from 
    only the most damaging concessions and exactions. In some of the 
    drafts last year this matter was handled by creating, in the 
    witness, a right to insist upon being heard publicly if he feared 
    the secret session. There are some possible difficulties with this, 
    although the hostile witness who invokes such a right would 
    probably be of little legitimate value to the committee in any 
    case. . .(21)
---------------------------------------------------------------------------
21. See Sec. 13.2, supra, for other criticism of this provision.
---------------------------------------------------------------------------

Receiving Testimony in Executive Session

Sec. 15.2 A point of order was raised against a committee report citing 
    a witness in contempt, on the ground that the committee had 
    violated a House rule by not receiving certain testimony in 
    executive session.

    On Oct. 18, 1966, Mr. Sidney R. Yates, of Illinois, raised points 
of order against House Report Nos. 2302 (22) 2305 
(23) and 2306 (24) relating to refusals of three 
named individuals to testify before the Committee on Un-American 
Activities, on the ground that the committee violated Rule XI clause 
27(m), (1) by not receiving in executive session evidence 
and testimony which would allegedly defame, degrade, or incriminate 
these individuals.
---------------------------------------------------------------------------
22. See Sec. 15.3, infra, for this point of order.
23. See Sec. 15.6, infra, for this point of order.
24. See 112 Cong. Rec. 27505, 89th Cong. 2d Sess., for this point of 
        order.
 1. See House Rules and Manual Sec. 735(m) (1973).
---------------------------------------------------------------------------

    Speaker John W. McCormack, of Massachusetts, overruled each point 
of order, stating as his reasons those set forth in sections 
following.(2)
---------------------------------------------------------------------------
 2. See Sec. Sec. 15.3, 15.6, infra.
---------------------------------------------------------------------------

Prerequisite for Committee Determination

Sec. 15.3 Where a person subpenaed as a witness responded to his name 
    and then left the hearing room without making any statement other 
    than that he refused to testify, the committee could not be said to 
    violate the House rule relating to derogatory informa

[[Page 2395]]

    tion since the proceedings had never reached the point where the 
    testimony could be said to tend to degrade, defame, or incriminate.

    On Oct. 18, 1966,(3) Speaker John W. McCormack, of 
Massachusetts, in response to a point of order by Mr. Sidney R. Yates, 
of Illinois, against privileged House Report No. 2302, citing Milton 
Mitchell Cohen, of Chicago, Ill., in contempt for refusal to respond to 
questions at a hearing, ruled that the Committee on Un-American 
Activities had not violated Rule XI clause 27(m),(4) because 
the proceedings had not reached the stage at which the committee 
determines whether to hear evidence or testimony in executive session.
---------------------------------------------------------------------------
 3. See the proceedings at 112 Cong. Rec. 27439-48, 89th Cong. 2d Sess.
 4. See House Rules and Manual Sec. 735(m) (1973).
---------------------------------------------------------------------------

                 Proceedings Against Milton Mitchell Cohen

        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, I rise on a 
    question of the privilege of the House, and by direction of the 
    Committee on Un -American Activities I submit a privileged report--
    House Report No. 2302. . . .
        Mr. Yates: Mr. Speaker, I make a point of order against the 
    resolution offered by the Committee on Un-American Activities. The 
    committee appears here today claiming the privilege of the House. 
    It asserts that this House has been injured, that its dignity and 
    its integrity have been threatened, even impaired, by reason of the 
    refusal of the respondents to give testimony to the committee at a 
    public hearing duly convened. It now asks this House in this 
    resolution to hold the respondent in contempt so that he may be 
    punished by the criminal processes of the law for his refusal to 
    testify.
        Mr. Speaker, there is no doubt that the respondent did refuse 
    to give testimony. The question I raise for the consideration of 
    the Chair is whether a witness may be required to give such 
    testimony when the committee itself has violated the [rights] of 
    the respondent by refusing to follow the Rules of the House which 
    were specifically established to protect the rights of the 
    respondents for this purpose. . . .
        This committee, the Committee on Un-American Activities, has 
    failed and refused to follow the Code of Fair Procedure by denying 
    the request of the respondent that his testimony be taken in 
    executive session. . . .(5)
---------------------------------------------------------------------------
 5. See Sec. 13.1, supra, for discussion of adoption of this code.
---------------------------------------------------------------------------

        May a committee of this House deny the protection of the rules 
    which were approved by this House for the purpose of protecting 
    witnesses who request that protection? There are no precedents of 
    the House on this point, but the Supreme Court (6) faced 
    with a

[[Page 2396]]

    similar question decided that a committee could not compel a 
    witness to testify under such circumstances, and the Court, the 
    Supreme Court of the United States, vacated a criminal contempt 
    conviction that had been entered against a defendant whose case had 
    come up from the Committee on Un-American Activities.
---------------------------------------------------------------------------
 6. See Yellin v United States, 374 U.S. 109 (1963), which reversed a 
        conviction because the Committee on Un-American Activities 
        failed to comply with its own rule, not a House rule, regarding 
        executive sessions rather than the House rule discussed here. 
        Yellin is discussed at Sec. 1 5.6, infra.
---------------------------------------------------------------------------

        Mr. Speaker, what does rule 26(m) provide? I read it, Mr. 
    Speaker. It says this:
        If the committee determines that evidence or testimony at an 
    investigative hearing may tend to defame, degrade, or incriminate 
    any person, it shall do the following:

        First. It shall receive such evidence or testimony in executive 
    session;
        Second. It shall afford such person an opportunity voluntarily 
    to appear as a witness; and--not ``or'' but ``and,'' Mr. Speaker.
        Third. Receive and dispose of requests from such persons to 
    subpena additional witnesses.
        It is to be noted, Mr. Speaker, that the three requirements of 
    the committee are not in the alternative. They are cumulative.
        In his letter of May 25, the chairman of this committee wrote a 
    letter to the respondent saying that the committee was acting 
    pursuant to [Rule XI clause 27(m)] in offering to take the 
    testimony in executive session. Thus, the rule had been activated 
    and a decision had been made by the committee that the testimony 
    was of a type that would tend to defame, degrade, or incriminate.
        Mr. Speaker, in offering the witness this opportunity to appear 
    voluntarily and give testimony in executive session, the committee 
    was complying with section 2 of the rule.
        But, Mr. Speaker, when the witnesses did not appear 
    voluntarily, in spite of the fact that the conditions for requiring 
    testimony to be taken in executive session were still present; 
    namely, that the testimony would tend to degrade, defame, or 
    incriminate, the committee determined to receive the testimony in 
    public session. . . .
        The Speaker: The Chair will hear the gentleman from Georgia 
    [Mr. Weltner].
        Mr. [Charles L.] Weltner: . . .
        [T]he report before the Speaker and before the Members shows 
    that on May 18, Mr. Cohen, without relying upon any constitutional 
    protection, announced through his attorney that he was departing 
    from the witness room without submitting himself to any questions 
    by the committee, after stating only his name and address.
        The rules of the House have been religiously followed in this 
    instance, in each case, in each of the three burdens upon the House 
    committee pursuant to rule 26(m). . . .
        There was a request by his attorney that he be called and 
    examined in executive session. The record of the hearing will show, 
    Mr. Speaker, that subsequent to the making of that request, this 
    committee recessed the public hearings; that it undertook to 
    consider his request in executive session; that the factors making 
    up the substance of his request were considered; and the request 
    was by unanimous vote of that committee denied. . . .

[[Page 2397]]

        The Speaker: The Chair is ruling only in these cases on this 
    particular case concerning Milton Mitchell Cohen. The gentleman 
    from Illinois [Mr. Yates] has raised a point of order against the 
    privileged report filed by the gentleman from Georgia [Mr. Weltner] 
    citing a witness before a subcommittee of the Committee on Un-
    American Activities of the House 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 agrees with the gentleman from Illinois that the 
    three subclauses are not in the alternative. Each subclause stands 
    by itself. The Chair will point out, however, that the subsection 
    places the determination with the committee, not with the witness. 
    . . .
        Now the Chair will cite clause 26(a) of rule XI, which states 
    that the rules of the House are the rules of its committees so far 
    as applicable. This provision also applies to the subcommittees of 
    any such committee. Consequently, the Chair must examine the facts 
    to see if the subcommittee did in fact comply with clause 26(m) of 
    rule XI.
        The Chair will call attention to the fact that it is pointed 
    out on page 8 of the report that the witness was invited to appear 
    and testify in executive session. The invitation was ignored.
        It will be noted, on pages 11 and 12 of the committee report, 
    that the attorney for witness Cohen instructed his client not to 
    give any testimony pending determination of a legal action in the 
    U.S. District Court for the Northern District of Illinois.
        The witness then left the hearing room, notwithstanding the 
    admonition of the chairman of the subcommittee.
        The Chair fails to see how clause 26 (m) of rule XI becomes 
    involved since the witness left the hearing room after his attorney 
    had instructed him not to answer any questions pending 
    determination of the legal proceedings.
        The Chair, therefore, overrules the point of order.

Committee Determinations

Sec. 15.4 The determination that evidence may tend to defame, degrade, 
    or incriminate a person, a prerequisite to certain procedural steps 
    under House rules lies with the committee and not with the witness.

    On Oct. 18, 1966, Speaker John W. McCormack, of Massachusetts, in 
the course of ruling on the point of order discussed above, stated 
(7) that the committee, not

---------------------------------------------------------------------------
 7. 112 Cong. Rec. 27448, 89th Cong. 2d Sess. See Sec. 15.3, supra, for 
        the point of order. See also Sec. 15.6 and 112 Cong. Rec. 
        27505, 27506, 89th Cong. 2d Sess., Oct. 18, 1966, for the same 
        ruling on this issue to points of order raised by Mr. Sidney R. 
        Yates (Ill.), against H. REPT. Nos. 2305 and 2306 relating to 
        refusals of Yolanda Hall and Dr. Jeremiah Stamler, 
        respectively, to testify before the Committee on Un-American 
        Activities.
---------------------------------------------------------------------------

[[Page 2398]]

the witness, determines whether evidence may tend to defame, degrade, 
or incriminate a person under Rule XI clause 27(m).(8)
---------------------------------------------------------------------------
 8. See House Rules and Manual Sec. 735(m) (1973).
---------------------------------------------------------------------------

        The Speaker: . . . 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 has . . . refreshed his recollection of clause 26(m), 
    rule XI, which reads as follows:

            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.

        The Chair agrees with the gentleman from Illinois that the 
    three subclauses are not in the alternative. Each subclause stands 
    by itself. The Chair will point out, however, that the subsection 
    places the determination with the committee, not with the witness.

Sec. 15.5 With respect to evidence or testimony at an investigative 
    hearing which may tend to defame, degrade, or incriminate a person, 
    the committee, under the rules of the House, determines whether to 
    hold an executive session or publicize material which has been 
    received in executive session.

    On Apr. 5, 1967,(9) during consideration of House 
Resolution 221, providing additional expense funds for the Committee on 
Un-American Activities, Speaker John W. McCormack, of Massachusetts, 
responded to parliamentary inquiries relating to the discretion of a 
committee under Rule XI clause 27(m).(10)
---------------------------------------------------------------------------
 9. 113 Cong. Rec. 8420, 8421, 90th Cong. 1st Sess.
10. See House Rules and Manual Sec. 735(m) (1973).
---------------------------------------------------------------------------

        Mr. [Sidney R.] Yates [of Illinois]: Mr. Speaker [rule XI, 
    27(m)] of the Rules of the House of Representatives states as 
    follows:

            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;

        Mr. Speaker, my question is this: If the committee determines 
    that the evidence it is about to receive may tend to defame, 
    degrade or incriminate a witness, is it not compulsory under the 
    Rules of the House for the committee

[[Page 2399]]

    to hold such hearings in executive session?
        The Speaker: The Chair will state that that is a matter which 
    would be in the control of the committee for committee action. . . 
    .
        Mr. Yates: I must say that I do not understand the ruling. Is 
    the Chair ruling that a committee can waive this rule? That it can 
    refuse to recognize this rule?
        The Speaker: The Chair would not want to pass upon a general 
    parliamentary inquiry, as distinguished from a particular one with 
    facts, but the Chair is of the opinion that if the committee voted 
    to make public the testimony taken in executive session, it is not 
    in violation of the rule, and certainly that would be a committee 
    matter.
        Mr. Yates: A further parliamentary inquiry, Mr. Speaker. What 
    the Chair is now stating is that if the committee votes at a 
    subsequent time to make public such a hearing, under the rules it 
    may do so. But that does not bear upon the question I addressed to 
    the Speaker, which was this: in the first instance, when testimony 
    is to be taken by the committee, and such testimony tends to 
    defame, degrade, or incriminate any person, must it be taken in 
    executive session? . . .
        The Speaker: The Chair will be very frank. The Chair recognizes 
    the power of the committee. If the committee goes into executive 
    session, the Chair is not going to make a ruling under those 
    circumstances as to whether a committee could make public testimony 
    taken in executive session.
        Mr. Yates: May I pursue one further parliamentary inquiry, Mr. 
    Speaker. The rule states:

            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.

        The question I addressed to the Chair was whether the committee 
    could waive that rule.
        The Speaker: The rule says:

            If the committee determines

        And there has to be a determination by the committee--

            that evidence or testimony at an investigative hearing may 
        tend to defame, degrade, or incriminate any person, it shall--

        First it has to make a determination. Without passing on this, 
    the Chair can look into the future and see where the committee 
    might make a determination, and then when it goes into executive 
    session and receives the evidence, it may find there the evidence 
    did not justify the original determination, or the evidence is of 
    such a nature that it justifies being made public.
        Mr. Yates: I thank the Chair. Then I take it from the Chair's 
    response to my inquiry that so long as the committee has made such 
    a finding and has not vacated it, the rule is applicable.
        The Speaker: The Chair is not even going to go that far--not on 
    this occasion. The Chair has been perfectly frank. Of course, 
    sometimes the word ``shall'' I know has been construed by the 
    courts sometimes as ``may''. The gentleman is familiar with that, I 
    am sure. The Chair is not doing that on this occasion. The Chair 
    would have to ascertain the facts in a particular case.

[[Page 2400]]

Consequence of Committee Determination

Sec. 15.6 A point of order that a committee violated a House rule 
    relating to the reception of derogatory evidence, made against a 
    committee report citing a witness for refusal to testify, could not 
    be sustained where the subpenaed witness requested through counsel 
    that evidence and testimony be taken in executive session, and the 
    committee recessed, considered, and denied the request, having 
    determined during the recess that these materials would not tend to 
    defame, degrade, or incriminate any person; such committee actions, 
    it was held, constituted compliance with the clause.

    On Oct. 18, 1966,(11) Speaker John W. McCormack, of 
Massachusetts, overruled a point of order raised by Mr. Sidney R. 
Yates, of Illinois, that the Committee on Un-American Activities 
violated Rule XI clause 27(m),(12) by not holding an 
executive session; the Speaker found that the committee had duly 
considered and rejected the request.
---------------------------------------------------------------------------
11. See the proceedings at 112 Cong. Rec. 27486-95, 89th Cong. 2d Sess. 
        See also 112 Cong. Rec. 27500-06, 89th Cong. 2d Sess., Oct. 18, 
        1966, for the same ruling on a point of order raised against H. 
        Rept. No. 2306, regarding the refusal of Dr. Jeremiah Stamler 
        to testify before the Committee on Un-American Activities.
12. See House Rules and Manual Sec. 735(m) (1973).
---------------------------------------------------------------------------

                      Proceedings Against Yolanda Hall

        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, I rise to a 
    question of the privilege of the House and by direction of the 
    Committee on Un-American Activities, I submit a privileged report-
    House Report No. 2305.
        The Clerk read as follows: . . . (13)
---------------------------------------------------------------------------
13. The report is omitted.
---------------------------------------------------------------------------

        Mr. Yates: Mr. Speaker, I make a point of order against the 
    resolution on the grounds that it is violative of [rule XI, 
    paragraph 27 (m)] of the rules of the House, requiring that 
    testimony which may tend to defame, degrade, or incriminate the 
    witness be taken in executive session. I do not intend to go into 
    the same delineation of my reasons that I gave in connection with 
    the preceding resolution.(14) But I suggest, with due 
    respect, that the Chair should consider the fact that in this case, 
    even though the Supreme Court of the United States decision is not 
    controlling, it is nevertheless persuasive, and I should like to 
    read to the Chair from the decision in the case of Yellin v. the 
    United States, 374 U.S.
---------------------------------------------------------------------------
14. See Sec. 15.3, supra, relating to a contempt citation against 
        Milton Mitchell Cohen, during which Mr. Sidney R. Yates (Ill.), 
        raised similar objections.
---------------------------------------------------------------------------

[[Page 2401]]

    109, page 114, where the Court recited the rule which was then 
    under consideration as follows: (1)
---------------------------------------------------------------------------
 1. The quoted rule is taken from the rules of the Committee on Un-
        American Activities, not the rules of the House.
---------------------------------------------------------------------------

            Executive hearings: If a majority of the committee or 
        subcommittee duly appointed as provided by the Rules of the 
        House of Representatives believes that the interrogation of a 
        witness in a public hearing might endanger national security or 
        unjustly injure his reputation or the reputation of other 
        individuals, the committee shall interrogate such witness in an 
        executive session for the purpose of determining the necessity 
        or the advisability of conducting such interrogation thereafter 
        in a public hearing.

        Mr. Speaker, I now read from the decision of the Court on this 
    particular rule, where the Court, discussing the rules that make up 
    the Code of Fair Procedure that were approved in the year 1955, 
    said as follows:

            All these rules work for the witness' benefit. They show 
        that the committee has in a number of instances intended to 
        assure the witness fair treatment, even the right to advice of 
        counsel or undue publicity, and even the right not to be 
        photographed by television cameras.
            Rule IX, in providing for an executive session when a 
        public hearing might unjustly injure a witness' reputation, has 
        the same protection import. And if it is the witness who is 
        being protected, the most logical person to have the right to 
        enforce those protections is the witness himself.

        I respectfully suggest, Mr. Speaker, that the respondent, who 
    was called as a witness, requested in the instant case that she be 
    afforded the opportunity to testify in an executive session, a 
    request that was denied by the committee. The respondent 
    subsequently walked out on the committee without testifying.
        I read from the court, to show that the respondent had no 
    alternative under such circumstances. On page 121 the court says 
    this:

            Petitioner has no traditional remedy, such as the writ of 
        habeas corpus . . . by which to redress the loss of his rights. 
        If the Committee ignores his request for an executive session, 
        it is highly improbable that petitioner could obtain an 
        injunction against the Committee that would protect him from 
        public exposure. . . . Nor is there an administrative remedy 
        for petitioner to pursue should the Committee fail to consider 
        the risk of injury to his reputation. To answer the questions 
        put to him publicly and then seek redress is no answer. For one 
        thing, his testimony will cause the injury he seeks to avoid; 
        under pain of perjury, he cannot by artful dissimulation evade 
        revealing the information he wishes to remain confidential. For 
        another, he has no opportunity to recover in damages. Even the 
        Fifth Amendment is not sufficient protection, since petitioner 
        could say many things which would discredit him without 
        subjecting himself to the risk of criminal prosecution. The 
        only avenue open is that which petitioner actually took. He 
        refused to testify.

        This is the decision of the Court. I respectfully suggest to 
    the Speaker that it would sustain the dignity and integrity of the 
    House if the interpretation of the rule for which I contend were 
    sustained. . . .

        Mr. [Richard H.] Ichord [of Missouri]: . . . To assist the 
    Chair in rul

[[Page 2402]]

    ing on the point of order of the gentleman from Illinois I would 
    point out to the Chair that the facts are essentially the same as 
    in the Cohen case, and that the gentleman from Illinois has raised 
    a point of order again under [rule XI 27(m)] that the witness, 
    Yolanda Hall, should have been afforded an executive session.
        Mr. Speaker, in this case the question of executive session is 
    not at 
    issue. . . .
        I direct the Speaker's attention to page 14 of the committee 
    report, which sets out the hearings in full.
        I direct the Speaker's attention to line 16, which will make it 
    clear to the Speaker that the witness, Yolanda Hall, did not 
    request an executive session from the House Committee on Un-
    American Activities. . . .
        Mr. Yates: . . . I . . . refer the Chair to page 337 of the 
    hearings where there appears a statement by Mr. Sullivan as 
    follows:

            I ask this committee to take in executive session any 
        testimony by my clients, that is, Dr. Stamler and Mrs. Hall, 
        and any testimony by any other witnesses about Dr. Stamler and 
        Mrs. Hall. That is my request.

        So that the request was made, Mr. Speaker, for testimony to be 
    taken in executive session. . . .
        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 27 (m)]--and, at the demand of the 
    witnesses' attorney, take the testimony in executive session rather 
    than in an open hearing.
        The Chair will again read [clause 27 (m), rule XI], as follows:

            (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.

        The Chair again agrees with the gentleman from Illinois that 
    the three subclauses are not in the alternative. Each subclause 
    stands by itself. The Chair will point out, however, that the 
    subsection places the determination with the committee, not with 
    the witness. . . .
        Now the Chair will cite [clause 27(a) of rule XI], which states 
    that the rules of the House are the rules of its committees so far 
    as applicable. This provision also applies to the subcommittees of 
    any such committee. Consequently, the Chair must examine the facts 
    to see if the subcommittee did in fact comply with [clause 27(m) of 
    rule XI].
        The Chair will call attention to the fact that it is pointed 
    out on page 8 of the report that the witness in this instance was 
    invited to appear and testify in executive session. The invitation 
    was ignored.

[[Page 2403]]

        It will be noted, on pages 11 through 14 of the committee 
    report, that the attorney for witness Hall made demand for an 
    executive session. You will note, on page 11 of the report, that 
    when the demand for an executive session was made, the subcommittee 
    took a recess. It is obvious from the subcommittee chairman's 
    statement following that recess, that the subcommittee had 
    considered and determined not to take the testimony in executive 
    session. The chairman so states, on page 12 of the Hall citation:

            Your motion, now made, that Mrs. Hall be now heard in 
        executive session I deny after consideration of the 
        subcommittee. We have complied with [rule 27(m)] and all other 
        applicable rules of the House and of this committee.

        It is patently clear to the Chair that the subcommittee did 
    comply with [clause 27 (m)], and made the determination necessary 
    thereunder. Accordingly, the Chair overrules the point of order.



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 16. Calling Witnesses; Subpenas

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

    A subpena is not a necessary prerequisite to an indictment and 
conviction for contempt under the

[[Page 2404]]

statute, 2 USC Sec. 192, because its provisions apply to contumacy by 
every person who has been ``summoned as a witness by the authority of 
either House of Congress to give testimony or to produce papers. . . 
.'' (7)
---------------------------------------------------------------------------
 7. Kamp v United States, 176 F2d 618 (D.C. Cir. 1948). See also, 
        Sinclair v United States, 279 U.S. 263, 291 (1929), which held 
        that the contempt statute extends to a case where a witness 
        voluntarily appears as a witness. Nonetheless, the House has 
        deleted from a contempt citation names of persons who had not 
        been subpenaed; see Sec. 17.4, infra.
---------------------------------------------------------------------------

    A voluntary appearance before a committee does not immunize a 
person against service of a subpena. Consequently, a witness who was 
served with a subpena at a hearing at which he appeared voluntarily and 
refused to answer questions could legally be indicted and convicted of 
contempt.(8)
---------------------------------------------------------------------------
 8. Dennis v United States, 171 F2d 986 (D.C. Cir. 1948).
---------------------------------------------------------------------------

    A properly authorized subpena issued by a committee or subcommittee 
has the same force and effect as a subpena issued by the House or 
Senate itself.(9) Authority to issue subpenas is granted 
either by provisions of the rules of the House (10) or 
resolutions approved by the House or Senate.(11)
---------------------------------------------------------------------------
 9. McGrain v Daugherty, 273 U.S. 135, 158 (1927). See discussion at 6 
        Cannon's Precedents Sec. 341; see also In re Motion to Quash 
        Subpenas and Vacate Service, 146 F Supp 792 (W.D. Pa. 1956).
10. In the 93d Congress, five committees, Appropriations, Budget, 
        Government Operations, Internal Security, and Standards of 
        Official Conduct, possessed authority under the rules to grant 
        subpenas; see Rule XI clauses 2(b), 8(d), and 11(b) 
        respectively, House Rules and Manual Sec. Sec. 679, 691, and 
        703 A (1973). In the 94th Congress, all committees functioning 
        under Rule X or XI were granted subpena authority by the 
        standing rules and only select committees derived subpena 
        authority from special resolutions.
11. Note: Recent changes in the procedure described herein, including 
        methods of authorization, will be discussed in supplements to 
        this edition as they appear.
---------------------------------------------------------------------------

    Because failure to comply with procedures prescribed in the rules 
or authorizing resolution invalidates subpenas, a subpena signed by the 
chairman but not authorized by a subcommittee (12) and 
another authorized by the chairman after consultation with one other 
member but not the full subcommittee,(13) were held invalid.
---------------------------------------------------------------------------
12. Shelton v United States, 327 F2d 601 (D.C. Cir. 1963).
13. Liveright v United States, 347 F2d 473 (D.C. Cir. 1965).
---------------------------------------------------------------------------

    Parliamentarian's Note: The committee or subcommittee must actually 
meet with a quorum

[[Page 2405]]

present to authorize the issuance of a subpena, since under section 407 
of Jefferson's Manual a committee ``can only act when together, and not 
by separate consultation and consent.''
    Minor irregularities in the form of a subpena do not invalidate it 
when the meaning is clear to the person to whom it is directed. An 
objection to a variance between a subpena duces tecum which directed 
the witness to produce records of the United Professional Workers of 
America, and an indictment, which alleged refusal to produce records of 
the United Public Workers of America, of which the witness was 
president, was held to be frivolous, particularly because the witness 
called attention to the error.(14)
---------------------------------------------------------------------------
14. Flaxer v United States, 235 F2d 821 (D.C. Cir. 1956), vacated and 
        remanded, 354 U.S. 929 (1957), aff'd., 258 F2d 413 (D.C. Cir. 
        1958), reversed on other grounds, 358 U.S. 147 (1958).
---------------------------------------------------------------------------

    A subpena directing a member of the executive board of an 
association to produce organizational records was held not defective as 
being addressed to an individual member of the board rather than to the 
association.(15) And postponement of a hearing did not 
excuse a refusal to testify on a date subsequent to the one that 
appeared on the subpena, despite the fact that the subpena did not 
contain a clause directing the witness to remain until excused, when 
the witness was present in Washington on the later date to attend the 
hearing and did not raise the issue at the time.(16)
---------------------------------------------------------------------------
15. United States v Fleischman, 339 U.S. 349 (1950), rein. denied, 339 
        U.S. 991 (1950).
16. United States v Groves, 18 F Supp 3 (W.D. Pa. 1937).
---------------------------------------------------------------------------

    Unlike a minor irregularity in form, a finding of invalidity of 
part of a subpena voids the whole subpena. Following the general rule 
that, ``one should not be held in contempt under a subpena that is part 
good and part bad,'' (17) a court of appeals stated in one 
case that the court had a burden to see that the subpena was good in 
its entirety. Believing that a person facing punishment should not have 
to cull the good from the bad, the court dismissed the indictment for 
contempt, because the subpena exceeded the authority delegated to the 
committee.(18) Similarly, the contempt conviction of the 
Executive Director of the Port of New York Authority, who provided 
subpenaed materials relating to the actual activities and
---------------------------------------------------------------------------
17. Bowman Dairy Company v United States, 341 U.S. 214 (1951).
18. United States v Patterson, 206 F2d 433 (D.C. Cir. 1953).
---------------------------------------------------------------------------

[[Page 2406]]

operations of the authority but refused to supply materials relating to 
the reasons for these activities, was reversed on the ground that the 
latter category exceeded the authority granted by the House to the 
investigative unit, a subcommittee.(19) Nonetheless, in one 
case it was held that the mere possibility that the general terms of a 
subpena could be construed to include materials protected by the first 
amendment could not justify a blanket refusal to produce anything, in 
the absence of an objection that the subpena was too 
broad.(20) And a witness' conviction for obstruction of 
justice for mutilating or concealing records subpenaed was upheld on 
appeal notwithstanding the fact that the subpena had not been properly 
authorized. A valid subpena was not considered vital, since the 
defendant knew the documents were desired by a congressional 
committee.(1)
---------------------------------------------------------------------------
19. Tobin v United States, 306 F2d 279 (1962), cert. denied, 371 U.S. 
        902 (1962).
20. Shelton v United States, 404 F2d 1292 (D. C. Cir. 1968), cert. 
        denied, 393 U.S. 1024 (1969).
 1. United States v Presser, 292 F2d 171 (6th Cir. 1961), aff'd. 371 
        U.S. 71 (1961).
---------------------------------------------------------------------------

    To assure the attendance of a witness who refused to answer 
questions before a committee, the House or Senate may order the Speaker 
or President of the Senate, respectively, to issue a warrant ordering 
the Sergeant at Arms to arrest the witness and bring him before the bar 
of the parent body, if there is a reasonable belief that important 
evidence may otherwise be lost.(2)
---------------------------------------------------------------------------
 2. Barry v United States ex rel. Cunningham, 279 U.S. 597, 619 (1929). 
        This case, based on an investigation of a Senator-elect, is 
        discussed at 6 Cannon's Precedents Sec. Sec. 346-349.
            The fact that an alien who had been subpenaed by a House 
        committee was arrested by Immigration and Naturalization 
        Service officers and taken before the committee in their 
        custody did not relieve him of his obligation to testify. 
        Although the issue of legality or illegality of the arrest 
        could be raised in a judicial proceeding, it was irrelevant to 
        the committee proceedings. Eisler v United States, 170 F2d 273 
        (D.C. Cir. 1948), cert. dismissed, 338 U.S. 883 (1949).
---------------------------------------------------------------------------

    Where a committee of Congress has subpenaed a witness to appear at 
a hearing without defining questions to be asked, the judicial branch 
should not enjoin in advance the holding of the hearing or suspend the 
subpena; the rights of a witness regarding any question actually asked 
at the hearing are subject to determination in appropriate proceedings 
thereafter.(3)
---------------------------------------------------------------------------
 3. Mins et al. v McCarthy, 209 F2d 307 (D.C. Cir. 1953).
---------------------------------------------------------------------------

[[Page 2407]]

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

Habeas Corpus

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

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

                                 Background

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

[[Page 2408]]

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

Subpena as Prerequisite for Contempt

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

    On Mar. 28, 1946,(5) Speaker Sam Rayburn, of Texas, 
responded to a point of order regarding authority to entertain a 
resolution citing for contempt persons who had not been subpenaed.
---------------------------------------------------------------------------
 5. 92 Cong. Rec. 2743-45, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [John S.] Wood [of Georgia]: Mr. Speaker, by direction of 
    the Committee on Un-American Activities, I present a privileged 
    report and ask that it be read. . . .

                    Committee on Un-American Activities

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

               Proceeding Against Dr. Edward K. Barsky and Others

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

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

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

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

[[Page 2409]]

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

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



                               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.
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
15. United States v Fort, 443 F2d 670, 676 (D.C. Cir. 1970), cert. 
        denied, 403 U.S. 932 (1971).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
16. See Sec. 22, infra, for a discussion of this statute.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).                          -------------------
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

        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. . . .
---------------------------------------------------------------------------
 4. Carl Albert (Okla.).
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

                 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.
---------------------------------------------------------------------------
 7. John W. McCormack (Mass.).
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
 9. 80 Cong Rec. 8222, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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
---------------------------------------------------------------------------
11. 92 Cong. Rec. 2745, 2749, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------


 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                   D. AUTHORITY IN CASES OF CONTEMPT
 
Sec. 18. Time for Consideration

Reports

Sec. 18.1 A report from a committee relating to the refusal of a 
    witness to produce certain subpenaed documents is privileged; it is 
    presented and read before a resolution is offered directing the 
    Speaker to certify the refusal to a U.S. Attorney.

    On Aug. 23, 1960,(13) Speaker Sam Rayburn, of Texas, 
indicated the order in which to read a report and resolution relating 
to contempt of a witness.
---------------------------------------------------------------------------
13. 106 Cong. Rec. 17278, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Emanuel] Celler [of New York]: Mr. Speaker, I rise to a 
    question

[[Page 2417]]

    of the privilege of the House and offer a resolution which I send 
    to the Clerk's desk along with a privileged report (Rept. No. 2117) 
    of the Committee on the Judiciary detailing the facts concerning 
    the contumacious conduct of the subject of the resolution.
        The Speaker: The Chair would think that the gentleman would 
    desire to file the report first and then offer the resolution.
        Mr. Celler: The report has been filed, Mr. Speaker.
        The Speaker: The Clerk will read the report, 
    then.(14)
---------------------------------------------------------------------------
14. This report cited Austin J. Tobin, executive director of the Port 
        Authority of New York for contempt for his refusal to submit 
        subpenaed documents before Subcommittee No. 5 of the Committee 
        on the Judiciary. The resolution, H. Res. 606, authorized the 
        Speaker to certify the report to a U.S. Attorney. See 106 Cong. 
        Rec. 17281, 86th Cong. 2d Sess., Aug. 23, 1960, for the text of 
        this resolution and 106 Cong. Rec. 17313 (H. Rept. No. 2120) 
        and 17316 (H. Res. 607), 86th Cong. 2d Sess., Aug. 23, 1960, 
        for similar proceedings against S. Sloan Colt, chairman of the 
        board of commissioners of the Authority; and 106 Cong. Rec. 
        17316 (H. Rept. No. 2121) and 17319 (H. Res. 608), 86th Cong. 
        2d Sess., Aug. 23, 1960, for similar proceedings against Joseph 
        G. Carty, secretary of the authority.
---------------------------------------------------------------------------

Sec. 18.2 Because a report on the contemptuous conduct of a witness 
    before a committee gives rise to a question of privileges of the 
    House (relating both to the implied constitutional power of the 
    House and its authority under Rule IX to dispose directly of 
    questions affecting the dignity and integrity of House 
    proceedings), it is privileged for consideration immediately upon 
    presentation to the House.

    On July 13, 1971,(15) Speaker Carl Albert, of Oklahoma, 
ruled that House Report No. 92-349, citing the Columbia Broadcasting 
System, Inc. and its president, Frank Stanton, for contempt for refusal 
to submit subpenaed materials to the Committee on Interstate and 
Foreign Commerce, was privileged under Rule IX,(16) and 
consequently could be considered on the same day it was reported 
notwithstandIng the requirement of Rule XI clause 
27(d)(4),(17) that reports from committees be available to 
Members for at least three calendar days prior to their consideration.
---------------------------------------------------------------------------
15. 117 Cong. Rec. 24720, 24721, 92d Cong. 1st Sess.
16. House Rules and Manual Sec. 661 (1973).
17. House Rules and Manual Sec. 735(d)(4) (1973).
---------------------------------------------------------------------------

    Proceeding Against Frank Stanton and Columbia Broadcasting System, 
                                    Inc.

        Mr. [Harley O.] Staggers [of West Virginia]: I rise to a 
    question of the

[[Page 2418]]

    privilege of the House, and I submit a privileged report (Report 
    No. 92-349).
        The Clerk proceeded to read the report.
        Mr. [Sam M.] Gibbons [of Florida]: Mr. Speaker, I want to raise 
    a point of order against the consideration of this matter at this 
    time.
        The Speaker: The gentleman will state his point of order.
        Mr. Gibbons: Mr. Speaker, I rise to object to the consideration 
    of this matter at this time in that I believe that it violates 
    clause 27, subparagraph (d)(4) of rule XI of the Rules of the House 
    of Representatives.
        Mr. Speaker, I refer to the language contained on page 381 of 
    the House Rules and Manual, 92d Congress. I would call your 
    attention to the fact that the rule, subparagraph (d)(4), clause 27 
    of rule XI was adopted last year in the Legislative Reorganization 
    Act, and was readopted earlier this year.
        Mr. Speaker, I think it would be best if I read just a portion 
    of the rule, and this rule reads as follows:

            A measure or matter reported by any committee (except the 
        Committee on Appropriations, the Committee on House 
        Administration, the Committee on Rules, and the Committee on 
        Standards of Official Conduct) shall not be considered in the 
        House unless the report of that committee upon that measure or 
        matter has been available to the Members of the House for at 
        least three calendar days (excluding Saturdays, Sundays, and 
        legal holidays) prior to the consideration of that measure or 
        matter in the House.

        Now, there is some more to that rule. The next sentence goes on 
    to deal with the hearings of the committee, but then there is an 
    exception to that rule, and it is:

            This subparagraph shall not apply to--
            (A) any measure for the declaration of war or the 
        declaration of a national emergency, by the Congress; and
            (B) any executive decision, determination, or action which 
        would become, or continue to be, effective unless disapproved 
        or otherwise invalidated by one or both Houses of Congress.

        Mr. Speaker, that rule was adopted last year. I have examined 
    the committee report. It is obvious the reasoning for its adoption 
    was to prevent the premature or rapid or precipitous consideration 
    of matters such as this kind, even though they dealt with a matter 
    of privilege. The matter of privileged matters is specifically not 
    excepted from this rule because I think many Members helping to 
    frame these rule changes last year felt that the Congress had not 
    acted wisely on some of these things that have come up pretty fast.
        The committee report, which is still classified as a committee 
    print, without any number, was not available until 10:30 this 
    morning. It is 272 pages long. I presume it is well written, I have 
    not had a chance to read it, and I doubt that very many other 
    Members have had a chance to read it in full.
        I would hope that the Chair would sustain this point of order. 
    I do not believe there is any grave emergency. I do not believe 
    that the person sought to be cited, or the organization sought to 
    be cited are about to leave the country. I would hope that the 
    House could

[[Page 2419]]

    consider this matter in a more rational manner and after it has had 
    the opportunity to read and examine the report.
        Mr. Speaker, I realize that some may say a matter of this sort 
    is a matter of privilege and, therefore, is excepted from the rule. 
    It is my contention, Mr. Speaker, that the matter of privilege was 
    specifically not excluded from the requirement of a 3-day lay-over 
    for the printing of the report but that the Committees on 
    Appropriations, House Administration, Rules, and Standards of 
    Official Conduct--those being the committees that generally deal 
    with matters of privilege--were set down under specific exception 
    and that it was never intended that citations such as this could be 
    considered in such a preemptive type of procedure as is now about 
    to take place.
        Mr. [Ogden R.] Reid of New York: Mr. Speaker, will the 
    gentleman yield?
        Mr. Gibbons: l yield to the gentleman.
        Mr. Reid of New York: Mr. Speaker, in furtherance of the point 
    that the gentleman is making, if the Chair will look at rule IX, it 
    states in the rule:

            Questions of privilege shall be, first, those affecting the 
        rights of the House collectively, its safety, dignity, and the 
        integrity of its proceedings;

        I would say, Mr. Speaker, that the 3-day rule is an important 
    principle, uniquely relevant to the Constitutional question. This 
    is the very idea of the 3-day rule and I believe that today to rush 
    through an important question does not comport with an enlightened 
    discharge of our responsibility.
        Mr. Speaker, I hope the point of order is upheld.
        The Speaker: Does the gentleman from West Virginia (Mr. 
    Staggers) desire to be heard on the point of order?
        Mr. Staggers: I do, Mr. Speaker.
        The Speaker: The gentleman is recognized.
        Mr. Staggers: Mr. Speaker, rule IX provides that ``Question of 
    privilege shall be, first, those affecting the rights of the House 
    collectively''--as the gentleman from New York has just read--``its 
    safety, dignity and the integrity of its proceedings.''
        Privileges of the House includes questions relating to those 
    powers to punish for contempt witnesses who are summoned to give 
    information.
        House Rule 27(d) of rule XI the so-called 3-day rule, clearly 
    does not apply to questions relating to privileges of the House. 
    The rule applies only to simple measures or matters reported by any 
    committee. It excludes matters arising from the Committee on 
    Appropriations, House Administration, Rules, and Standards of 
    Official Conduct.
        It is clear that the terms ``measure'' or ``matter'' as used in 
    rule 27(d) do not apply to questions of privilege.
        To apply it in such a way would utterly defeat the whole 
    concept of the question of privilege.
        Too, a privileged motion takes precedence over all other 
    questions except the motion to adjourn.
        The fact that the 3-day rule excludes routine matters from the 
    Appropriations, Administration, Rules, and Standards of Official 
    Conduct Committees clearly shows that the 3-day rule does not apply 
    to privileged questions.
        If the rule were meant to apply to questions of privilege, it 
    surely would not make exceptions for routine business coming from 
    regular standing committees.

[[Page 2420]]

        The Speaker: The Chair is ready to rule.
        The Chair appreciates the fact that the gentleman from Florida 
    has furnished him with a copy of the point of order which he has 
    raised and has given the Chair an opportunity to consider it.
        The gentleman from Florida (Mr. Gibbons) makes a point of order 
    against the consideration of the report from the Committee on 
    Interstate and Foreign Commerce on the grounds that it has not been 
    available to Members for at least 3 days as required by clause 
    27(d)(4) of rule XI. The Chair had been advised that such a point 
    of order might be raised and has examined the problems involved.
        The Chair has studied clause 27(d)(4) of rule XI and the 
    legislative history in connection with its inclusion in the 
    Legislative Reorganization Act of 1970.
        That clause provides that ``a matter shall not be considered in 
    the House unless the report has been available for at least 3 
    calendar days.''
        The Chair has also examined rule IX, which provides that:

            Questions of privilege shall be, first, those affecting the 
        rights of the House collectively, its safety, dignity, and the 
        integrity of its proceedings . . . and shall have precedence of 
        all other questions, except motions to adjourn.

        Under the precedents, a resolution raising a question of the 
    privileges of the House does not necessarily require a report from 
    a committee. Immediate consideration of a question of privilege of 
    the House is inherent in the whole concept of privilege. When a 
    resolution is presented, the House may then make a determination 
    regarding its disposition.
        When a question is raised that a witness before a House 
    committee has been contemptuous, it has always been recognized that 
    the House has the implied power under the Constitution to deal 
    directly with such conduct so far as is necessary to preserve and 
    exercise its legislative authority. However, punishment for 
    contemptuous conduct involving the refusal of a witness to testify 
    or produce documents is now generally governed by law--Title II, 
    United States Code, sections 192-194--which provides that whenever 
    a witness fails or refuses to appear in response to a committee 
    subpena, or fails or refuses to testify or produce documents in 
    response thereto, such fact may be reported to the House. Those 
    reports are of high privilege.
        When a resolution raising a question of privilege of the House 
    is submitted by a Member and called up as privileged, that 
    resolution is also subject to immediate disposition as the House 
    shall determine.
        The implied power under the Constitution for the House to deal 
    directly with matters necessary to preserve and exercise its 
    legislative authority; the provision in rule IX that questions of 
    privilege of the House shall have precedence of all other 
    questions; and the fact that the report of the committee has been 
    filed by the gentleman from West Virginia as privileged--all refute 
    the argument that the 3-day layover requirement of clause 27(d)(4) 
    applies in this situation.
        The Chair holds that the report is of such high privilege under 
    the inherent constitutional powers of the House and

[[Page 2421]]

    under rule IX that the provisions of clause 27(d)(4) of rule XI are 
    not applicable.
        Therefore, the Chair overrules the point of order.
        The Clerk will continue to read the report.

Point of Order Regarding House Trial

Sec. 18.3 The point of order was made that the House should itself try 
    contempt cases, rather than certify such matters to the courts; the 
    report which was objected to having just been read, the Speaker 
    indicated that submission of such issue (which is one to be decided 
    by the House) should be postponed until a resolution was actually 
    presented for consideration by the House.

    On May 28, 1936,(18) after the reading of a privileged 
report from the Select Committee on Investigating Old Age Pensions, 
House Report No. 2857, regarding contempt of Dr. Francis E. Townsend, 
president and founder, and two members of the national board of 
directors of Old Age Revolving Pensions, Ltd., for failure to provide 
subpenaed testimony and documents, Speaker Joseph W. Byrns, of 
Tennessee, responded to a point of order regarding the procedure to try 
and punish contempt.
---------------------------------------------------------------------------
18. 80 Cong. Rec. 8221, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Thomas L.] Blanton [of Texas]: Mr. Speaker, I make the 
    point of order that under the Constitution of the United States the 
    House of Representatives of the legislative branch is a separate 
    and distinct department of government from the judiciary, or the 
    courts, that this is undoubtedly a contempt of the House of 
    Representatives, the legislative branch, and is a contempt that 
    should be tried and punished, not by the courts, but by the House 
    of Representatives itself. We ought not to pass the buck to the 
    courts. We ought to assume the responsibility ourselves.
        I admit that all three witnesses clearly are in contempt, and 
    deserve punishment and that the House ought to try these three 
    witnesses, convict them of contempt, and punish all three of them 
    with a heavy fine and send them all to jail, until they can have 
    some respect for the institutions of their country. I therefore 
    make the point of order that the House of Representatives should 
    try its own contempt proceedings and fix its own punishment.
        The Speaker: That matter is not under discussion now. This is 
    simply a report from a select committee which has been read and 
    which has been ordered printed. The Chair recognizes the gentleman 
    from Missouri.
        It should be noted that the Speaker did not indicate that the 
    point of order, even if timely, would have been valid. Rather, the 
    Speaker implied that such

[[Page 2422]]

    issues were to be determined by the House by voting on whatever 
    resolution was presented to the House.(19)
---------------------------------------------------------------------------
19. See Sec. 19.2, infra, for a discussion of the proceedings as they 
        relate to the authority of a committee to report the contempts 
        of witnesses.
---------------------------------------------------------------------------

Resolutions

Sec. 18.4 A resolution directing the Speaker to certify to the U.S. 
    Attorney the refusal of a witness to respond to a subpena issued by 
    a House committee may be offered from the floor as privileged and 
    may be disposed of immediately.

    On July 13, 1971,(20) House Resolution 534, authorizing 
the Speaker to certify to the U.S. Attorney a report citing the 
contemptuous refusal of the Columbia Broadcasting System and its 
president, Frank Stanton, to respond to a subpena duces tecum issued by 
the Committee on Interstate and Foreign Commerce, and House Report No. 
92-349, citing this contempt, were offered from the floor. The 
resolution was considered as privileged by the Speaker.(1)
---------------------------------------------------------------------------
20. 117 Cong. Rec. 24720, 24721, 24723, 92d Cong. 1st Sess.; see 
        Sec. 18.2, supra, for the text of the point of order and ruling 
        regarding the privileged status of the report.
 1. Carl Albert (Okla.).
---------------------------------------------------------------------------

Sec. 18.5 Because it is a matter of high privilege, a resolution 
    directing the Speaker to certify an individual in contempt may be 
    called up at any time.

    On Aug. 2, 1946,(2) Speaker Sam Rayburn, of Texas, 
responded to a parliamentary inquiry regarding the privileged status of 
a resolution authorizing the Speaker to certify an individual in 
contempt.
---------------------------------------------------------------------------
 2. 92 Cong. Rec. 10746, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

                     Proceeding Against Richard Morford

        The Speaker: For what purpose does the gentleman from 
    Mississippi rise?
        Mr [John E.] Rankin [of Mississippi]: Mr. Speaker, I send to 
    the Clerk's desk a privileged resolution and ask that it be read.
        The Speaker: The Clerk will read the resolution.
        Mr. [Vito] Marcantonio [of New York]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Marcantonio: Mr. Speaker, has not the Speaker the power to 
    determine the order of business by recognizing or not recognizing 
    gentlemen requesting the consideration of various pieces of 
    legislation? I make that parliamentary inquiry because there is 
    very important business pending before the House--social security, 
    appro

[[Page 2423]]

    priations for terminal-leave pay, and for automobiles for 
    amputees--and I see no reason why this resolution should be given 
    preference.
        The Speaker: It would not be given preference if it were an 
    ordinary resolution, but this is a resolution of high privilege.

Calendar Wednesday

Sec. 18.6 A report of a committee citing a witness for contempt was 
    considered on Calendar Wednesday.

    On June 26, 1946,(3) Calendar Wednesday, the House 
considered a privileged report from the Committee on Un-American 
Activities, House Report No. 2354, citing Corliss G. Lamont, chairman 
of the National Council of American-Soviet Friendship, Inc., for 
contempt for his refusal to produce subpoenaed materials.(4)
---------------------------------------------------------------------------
 3. See 92 Cong. Rec. 7589-91, 79th Cong. 2d Sess., for the text of the 
        report.
 4. This report is discussed at Sec. 19.1, infra.
---------------------------------------------------------------------------


 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                   D. AUTHORITY IN CASES OF CONTEMPT
 
Sec. 19. Matters Decided by House

Content of Report

Sec. 19.1 The House, not the Chair, determines whether a report citing 
    an individual for refusal to produce subpenaed materials must 
    contain the full testimony or only selected portions thereof.

    On June 26, 1946,(5) Speaker Sam Rayburn, of Texas, 
responded to a point of order regarding the sufficiency of a hearing 
transcript in a committee report citing a I witness for contempt.
---------------------------------------------------------------------------
 5. 92 Cong. Rec. 7589-91, 79th Cong. 2d Sess. See Sec. 18.6, supra, 
        for a discussion of this instance as it relates to 
        consideration on Calendar Wednesday.
---------------------------------------------------------------------------

                   Proceedings Against Corliss G. Lamont

        Mr. [John S.] Wood [of Georgia]: Mr. Speaker, by direction of 
    the Committee on Un-American Activities, I present a privileged 
    report and ask that it be read.
        The Clerk read as follows:

            The Committee on Un-American Activities, as created and 
        authorized by the House of Representatives by House Resolution 
        5 of the Seventy-ninth Congress, caused to be issued a subpena 
        to Corliss G. Lamont, chairman of the National Council of 
        American-Soviet Friendship, Inc., with offices at 114 East 
        Thirty-second Street, New York City, N.Y. The said subpena 
        required the said person to produce books, papers, and records 
        of the organization for the inspection of your committee. The 
        subpena is set forth as follows: . . .
            In response to the said subpena the said Corliss Lamont 
        appeared before your committee on February 6, 1946, and your 
        committee then

[[Page 2424]]

        and there demanded the production of the said books, papers, 
        and records, and the said Lamont refused to produce as required 
        by the said subpena. The said Lamont was duly sworn by the 
        chairman and gave his testimony under oath. The material parts 
        of his testimony follow: . . .

        Mr. [Vito] Marcantonto [of New York]: Mr. Speaker, a point of 
    order.
        The Speaker: The gentleman will state it.
        Mr. Marcantonio: Mr. Speaker, I make the point of order against 
    the report on the ground that it does not contain all of the 
    transcript of what transpired before the committee with respect to 
    this witness. On page 2 of the report, at the end of the first 
    paragraph, the committee concedes that this is not a full 
    transcript. It states: ``The material parts of his testimony 
    follow.'' In other words, the House has before it only that portion 
    of the testimony which the committee conceives to be material. This 
    deprives the House of having the full proceedings before it; 
    consequently, the House will be asked to vote on whether or not 
    this witness is to be cited for contempt and whether or not the 
    House is to recommend prosecution of this witness, without having 
    the full story before it, without having all of the testimony 
    before it. All that is given is part of the testimony which the 
    committee describes as material.
        I respectfully submit in support of my point of order, Mr. 
    Speaker, that what is material and what is not material should be 
    determined by the House, because the House has to pass on this 
    question and the majority of the Members of this House must vote in 
    the affirmative in order to recommend these contempt proceedings. 
    To do so it must have the entire transcript before it. Consequently 
    I submit that the report is defective and that the report should be 
    referred back to the committee by the Speaker, directing it to 
    produce the full transcript of what transpired so that the House 
    may have the entire proceedings before it before the House Members 
    cast their votes.
        The Speaker: The Chair thinks that the gentleman from New York 
    [Mr. Marcantonio] has stated the point exactly, and that is that 
    this is not a matter for the Chair to pass upon but is a matter for 
    the House to pass upon. The Chair overrules the point of order.

Authority of Committee

Sec. 19.2 Whether a committee exceeded its authority in making a report 
    citing certain recalcitrant witnesses in contempt was held to be a 
    matter for the House to decide, and not a matter to be decided on 
    the basis of a point of order raised against submission of the 
    report.

    On May 28, 1936,(6) Speaker Joseph W. Byrns, of 
Tennessee, responded to a point of order regarding authority to report 
contemptuous conduct.
---------------------------------------------------------------------------
 6. 80 Cong. Rec. 8219-22, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

                     The Townsend Old-Age Pension Plan

        Mr. [C. Jasper] Bell [of Missouri]: Mr. Speaker, by direction 
    of the Select

[[Page 2425]]

    Committee Investigating Old Age Pensions, I present a privileged 
    report (Reps. No. 2857) and send it to the Clerk's desk, and ask 
    that the Clerk read it. . . .(7)
---------------------------------------------------------------------------
 7. This report citing Dr. Francis E. Townsend, president and founder, 
        and Clinton Wunder and John B. Kiefer, members of the national 
        board of directors of the Old Age Revolving Pensions, Ltd., for 
        contempt for failure to provide subpenaed testimony and 
        documents to the select committee is omitted.
---------------------------------------------------------------------------

        Mr. [Joseph P.] Monaghan [of Montana]: . . . Mr. Speaker, I 
    wish to make a point of order.
        The Speaker: The gentleman will state his point of order.
        Mr. Monaghan: Mr. Speaker, my point of order goes to the fact 
    that this report is completely out of order.
        The Speaker: The gentleman will state his point of order. . . .
        Mr. Monaghan: The point of order I make is that the committee 
    has exceeded its function in the process of the inquiry that the 
    House authorized it to proceed under.
        The Speaker: Let the Chair make this statement. That is not 
    under consideration now. This is simply a report of the select 
    committee, and the question as to whether or not the committee has 
    exceeded its authority cannot arise at this time.
        Mr. Monaghan: But the question that the committee has exceeded 
    its authority is involved in the question of whether or not it 
    shall be permitted to make a report of this sort.
        The Speaker: The committee is within its right in submitting 
    its report; it is its duty to report what it has done in order that 
    the House may take such action as it determines to take. Therefore, 
    the Chair overrules that point of order.

    An appeal from the decision of the Chair was laid on the table.

Need to Read Testimony

Sec. 19.3 The House, not the Chair, determines whether a report 
    summarizing the testimony of witnesses and minutes of proceedings 
    of investigative hearings is sufficient on which to base a contempt 
    citation.

    On Apr. 16, 1946,(8) Speaker Sam Rayburn, of Texas, 
responded to a point of order regarding reading of investigative 
hearing testimony before the House.
---------------------------------------------------------------------------
 8. 92 Cong. Rec. 3761, 3762, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

                    Joint Anti-Fascist Refugee Committee

        Mr. [John S.] Wood [of Georgia]: Mr. Speaker, by direction of 
    the Committee on Un-American Activities, I present a privileged 
    report and ask that it be read.
        The Clerk read as follows:

          Proceeding Against the Joint Anti-Fascist Refugee Committee

            Mr. Wood, from the Committee on Un-American Activities, 
        submitted the following report:

[[Page 2426]]

            The Committee on Un-American Activities, created and 
        authorized by the House of Representatives by House Resolution 
        5 of the Seventy-ninth Congress, caused to be issued subpenas 
        to the Joint Anti-Fascist Refugee Committee, an unincorporated 
        organization, with offices at 192 Lexington Avenue, New York, 
        N. Y., service being made upon Helen R. Bryan, executive 
        secretary, and to the members of the executive board of the 
        said organization whose names are listed below. The said 
        subpena required the said persons to produce books, papers, and 
        records for inspection by your committee. The form of the 
        subpenas follows: . . .
            Your committee has caused to be printed the testimony of 
        each and every one of the persons named herein given on April 
        4, 1946, and the said testimony will be filed with the Clerk of 
        the House as an appendix to this report. . . .

        Mr. [Vito] Marcantonio [of New York]: Mr. Speaker, a point of 
    order.
        The Speaker: The gentleman will state it.
        Mr. Marcantonio: Mr. Speaker, prefacing my point of order, I 
    would like to make a parliamentary inquiry. Must not a resolution 
    of this nature contain the testimony, or at least a pertinent part 
    of the testimony? It is related in the statement that the testimony 
    is appended, but that testimony has not been read to the House, and 
    for that reason I make the point of order that the resolution is 
    defective.
        The Speaker: No resolution has been offered as yet. This is 
    simply the report of the committee.
        Mr. Marcantonio: Very well; in the report we have before us it 
    merely says that the testimony is appended. I submit the House 
    should have that testimony before it. As I understand it, the 
    Members of the House have received, what I hold in my hand, the 
    hearings of April 4. That was received only yesterday. It contains 
    over 100 pages of testimony. This case is very important, and I 
    maintain that the testimony or the relevant portion of the 
    testimony should be read to the House.
        The Speaker: The testimony has already been printed, and 
    reference to it is made in this report. The other matter that the 
    gentleman refers to is a question for the House to pass upon, and 
    not the Speaker.
        Mr. Marcantonio: Mr. Speaker, on that point, this is most 
    unusual. Heretofore every report that we have had upon which a 
    resolution for contempt was based, we have read to the House the 
    minutes of the proceedings upon which the contempt citation is 
    requested.
        Mr. [John E.] Rankin [of Mississippi]: Mr. Speaker, that never 
    has been done.
        The Speaker: That also is within the control of the House. The 
    gentleman from Georgia is recognized.

Citation of Witnesses Absent Subpena

Sec. 19.4 The House, not the Chair, determines whether persons who have 
    not been subpenaed may be cited for refusal to produce 
    organizational books, records, and papers.

    On Mar. 28, 1946,(9) Speaker Sam Rayburn, of Texas, re
---------------------------------------------------------------------------
 9. 92 Cong. Rec. 2744, 2745, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

[[Page 2427]]

sponded to a point of order regarding authority to entertain a 
resolution citing for contempt persons who had not been 
subpenaed.(10)
---------------------------------------------------------------------------
10. See summary and analysis in Sec. 16, supra, for a discussion which 
        indicates that a subpena is not a necessary prerequisite for a 
        contempt conviction.
---------------------------------------------------------------------------

                    Committee on Un-American Activities

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

               Proceeding Against Dr. Edward K. Barsky and Others

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

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

        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. [Vito] Marcantonio [of New York]: Mr. Speaker, a point of 
    order.
        The Speaker: The gentleman will state it.
        Mr. Marcantonio: Mr. Speaker, I make a point of order against 
    the resolution on the ground that it seeks to have cited by this 
    House individuals

[[Page 2428]]

    who were never subpenaed, and never given an opportunity to appear 
    and state whether or not they would or could comply with a subpena. 
    Under those circumstances, I maintain that insofar as those 
    individuals are concerned this matter is not properly before the 
    House, in that neither the resolution nor the report from the 
    committee sets forth that these individuals were subpenaed, with 
    the exception of Dr. Barsky. None of the others were subpenaed; 
    none of the others came before the committee and were accorded even 
    an opportunity to say ``yes'' or ``no'' as to whether or not they 
    had authority or control over the records and books and whether 
    they could or would comply with the committee's subpena. For that 
    reason, as far as they are concerned, this resolution is not 
    properly before this House.
        The Speaker: The Chair is ready to rule.
        The report and the resolution are both before the House for its 
    determination, and not the determination of the Chair. The Chair 
    overrules the point of order.(11)
---------------------------------------------------------------------------
11. See Sec. 17.4, supra, in which the House agreed to an amendment 
        deleting names of all persons who had not been subpenaed.
---------------------------------------------------------------------------

 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                   D. AUTHORITY IN CASES OF CONTEMPT
 
Sec. 20. Particular Conduct as Contumacious

    The contempt statute, 2 USC Sec. 192, penalizes any person summoned 
as a witness by a committee who ``willfully (12) makes 
default'' or who, having appeared, ``refuses to answer any question. . 
. .'' The word ``default'' means failure to appear in response to a 
summons (13) as well as failure to produce 
papers.(14) With respect to a witness summoned to give 
testimony, ``default'' includes not only failure to appear, but refusal 
to be sworn.(15)
---------------------------------------------------------------------------
12. See Sec. 7, supra, for a discussion of willfulness in relation to 
        intent of witness.
13. United States v Bryan, 339 U.S. 323, 327 (1950). See 
        Sec. Sec. 20.1, 20.2, infra.
14. United States v Bryan, 339 U.S. 323, 327 (1950). See 
        Sec. Sec. 20.9, 20.10, infra.
15. Eisler v United States, 170 F2d 273 (D.C. Cir. 1948), cert. 
        dismissed, 338 U.S. 883 (1949); United States v Josephson, 165 
        F2d 82 (2d Cir. 1947), cert. denied, 333 U.S. 838 (1948). See 
        Sec. Sec. 20.3, 20.4, infra.
---------------------------------------------------------------------------

    A district court (16) held that the contempt statute 
proscribes every willful failure to comply with a summons, not merely 
the failure to appear pursuant to a summons, and interpreted the word 
``default'' to mean failure to give testimony or produce papers as well 
as refusal to testify or appear. ``Default'' also applies to a witness' 
withdrawal from a hearing without consent of the 
committee.(17)
---------------------------------------------------------------------------
16. United States v Hintz, 193 F Supp 325 (N.D. Ill. 1961).
17. United States v Costello, 198 F2d 200 (2d Cir. 1952), cert. denied, 
        344 U.S. 874 (1952); Townsend v United States, 95 F2d 352 (D.C. 
        Cir. 1938), cert. denied, 303 U.S. 664 (1938). See 
        Sec. Sec. 20.7, 20.8, infra.

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

[[Page 2429]]

    The portion of the statute regarding refusal to answer any question 
is closely related to willfulness, an element which has been read into 
the statute notwithstanding the fact that ``willful'' or ``willfully'' 
does not expressly modify refusal to answer. A court of appeals 
(18) explained.
---------------------------------------------------------------------------
18. Deutch v United States, 235 F2d 858 (D.C. Cir. 1956).
---------------------------------------------------------------------------

        The statute uses the word ``willfully'' as a word of art to 
    define the offense of failing to appear; ``willfully'' is not used 
    with respect to a person ``who having appeared, refuses to answer. 
    . . . '' The act of refusing (as distinguished from failing) to 
    answer is a positive, affirmative act; the result is conscious and 
    intended. Congress recognized that a failure to appear in response 
    to a summons could well be due to other causes than willfulness or 
    deliberate purpose to disobey the summons or the statute. . . . To 
    decline or refuse to answer a question, however, is by its own 
    nature a deliberate and willful act.

    A committee's failure to give a witness a clear direction to answer 
a question has constituted a ground on which to reverse contempt 
convictions.(19)
---------------------------------------------------------------------------
19. Emspak v United States, 349 U.S. 190, 202 (1955); Quinn v United 
        States, 349 U.S. 155, 165 (1955); Bart v United States, 349 
        U.S. 219, 221 (1955).
---------------------------------------------------------------------------

    The precedents in this section illustrate particular conduct that 
has been regarded as 
contumacious.                          -------------------

Refusal to Appear

Sec. 20.1 A committee filed a privileged report which included a 
    contempt citation and facts relating to the refusal of a witness to 
    appear before it.

    On Apr. 22, 1947,(20) the Committee on Un-American 
Activities offered a privileged report, House Report No. 289, relating 
to a witness' refusal to appear in response to a subpena ad 
testificandum.
---------------------------------------------------------------------------
20. 93 Cong. Rec. 3813, 3814, 80th Cong. 1st Sess. On the same day, the 
        House adopted a resolution (H. Res. 193) certifying the 
        contemptuous conduct to the appropriate U.S. attorney. See also 
        United States v Dennis, 171 F2d 986 (D.C. Cir. 1948), aff'd. 
        339 U.S. 162 (1950), wherein defendant's subsequent conviction 
        was affirmed.
---------------------------------------------------------------------------

      Proceedings Against Eugene Dennis, Also Known as Francis Waldron

            Mr. [J. Parnell] Thomas of New Jersey: Mr. Speaker, by 
        direction of the Committee on Un-American Activities, I present 
        a privileged report, which I send to the Clerk's desk and ask 
        to have read.
            The Speaker: (1) The Clerk will read the report.
---------------------------------------------------------------------------
 1. Joseph W. Martin, Jr. (Mass.).
---------------------------------------------------------------------------

            The Clerk read as follows:

[[Page 2430]]

           Report Citing Eugene Dennis, Also Known as Francis Waldron

            The Committee on Un-American Activities as created and 
        authorized by the House of Representatives through the 
        enactment of Public Law No. 601, section 121, subsection Q (2), 
        caused to be issued a subpena to Eugene Dennis, also known as 
        Francis Waldron, who is general secretary of the Communist 
        Party of the United States. The said subpena directed Eugene 
        Dennis, also known as Francis Waldron, to be and appear before 
        the said Committee on Un-American Activities on April 9, 1947, 
        and then and there to testify touching matters of inquiry 
        committed to the said committee; the subpena being set forth in 
        words and figures as follows:
            ``By authority of the House of Representatives of the 
        Congress of the United States of America, to Robert E. 
        Stripling: You are hereby commanded to summon Eugene Dennis, 
        also known as Francis Waldron, general secretary, Communist 
        Party of the United States, to be and appear before the Un-
        American Activities Committee of the House of Representatives 
        of the United States, of which the Honorable J. Parnell Thomas 
        is chairman, in their chamber in the city of Washington, on the 
        9th day of April 1947, at the hour of 10 a.m., then and there 
        to testify touching matters of inquiry committed to said 
        committee; and he is not to depart without leave of said 
        committee. Herein fail not, and make return of this summons.
            ``Witness my hand and the seal of the House of 
        Representatives of the United States, at the city of 
        Washington, this 26th day of March 1947.
            ``J. Parnell Thomas, Chairman. ``Attest:
                ``John Andrews, Clerk.''
            The said subpena was duly served, as appears by the return 
        made thereon by Robert E. Stripling, chief investigator of the 
        Committee on Un-American Activities, who was duly authorized to 
        serve the said subpena and who served the said subpena upon 
        instructions received from the chairman of the Committee on Un-
        American Activities. The return of the service by the said 
        Robert E. Stripling being endorsed thereon, which is set forth 
        in words and figures as follows:
            ``Subpena for Eugene Dennis also known as Francis Waldron 
        before the Committee on Un-American Activities, United States 
        House of Representatives, served at 11:35 a.m., March 26, 1947, 
        in the committee's chambers in Washington, D.C.
                                        ``Robert E. Stripling,

                                           ``Chief Investigator,
                                          Committee on Un-American
                                                     Activities.''

            On April 7, 1947, a telegram was sent to Mr. Eugene Dennis, 
        general secretary of the Communist party of the United States, 
        which is set forth herein in words and figures as follows:
                                                ``April 7, 1947.

            Mr. Eugene Dennis,
            ``General Secretary,
            ``Headquarters, Communist Party,
            ``50 East Thirteenth Street,
            ``New York, N.Y.
            ``This is to notify you that in response to the subpena 
        which was served upon you March 26, you are to appear before 
        the Committee on Un-American Activities, at the committee's 
        chambers, 225 Old House Office Building, at 10 a.m., April 9, 
        1947, to then and there give testimony under oath concerning 
        matters pertinent to the committee's inquiry.
                                        ``Robert E. Stripling,
                                           ``Chief Investigator,
                                          Committee on Un-American
                                                     Activities.''

            The said Eugene Dennis, also known as Francis Waldron, 
        failed to appear before the said Committee on

[[Page 2431]]

        Un-American Activities on April 9, 1947, as directed by the 
        subpena served upon him on March 26, 1947, and the willful and 
        deliberate refusal of the witness to appear before the 
        Committee on Un-American Activities is a violation of the 
        subpena served upon him by the Committee on Un-American 
        Activities and places the said Eugene Dennis, also known as 
        Francis Waldron, in contempt of the House of Representatives of 
        the United States.

Sec. 20.2 The House agreed to a privileged resolution directing the 
    Speaker to certify to the appropriate U.S. Attorney a report citing 
    a witness in contempt for refusing to appear at an investigative 
    hearing to which he had been subpenaed.

    On Feb. 5, 1952,(2) the House on a roll call vote of 316 
yeas to 0 nays approved a resolution directing the Speaker to certify a 
report.
---------------------------------------------------------------------------
 2. 98 Cong. Rec. 829, 832, 82d Cong. 2d Sess. See also, as a further 
        example, 93 Cong. Rec. 3806, 3811, 80th Cong. 1st Sess., Apr. 
        22, 1947, for the approval, on a vote of 357 yeas to 2 nays, of 
        H. Res. 190, directing the Speaker to certify to the U.S. 
        Attorney for the District of Columbia, H. Rept. No. 281, citing 
        Leon Josephson in contempt for refusing to appear before the 
        Committee on Un-American Activities; and 93 Cong. Rec. 3814, 
        3820, 80th Cong. 1st Sess., Apr. 22, 1947, for the approval, on 
        a vote of 196 yeas to 1 nay, of H. Res. 193, directing the 
        Speaker to certify to the U.S. Attorney for the District of 
        Columbia H. Rept. No. 289, citing Eugene Dennis, also known as 
        Francis Waldron, in contempt for refusing to appear before the 
        Committee on Un-American Activities.
---------------------------------------------------------------------------

        Mr. [John S.] Wood of Georgia: Mr. Speaker, I offer a 
    privileged resolution (H. Res. 517) 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 willful default of 
        Sidney Buchman in failing to appear before the Committee on Un-
        American Activities in response to a subpena duly served upon 
        him, 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 
        Sidney Buchman may be proceeded against in the manner and form 
        provided by law.. . .

        The Speaker: (3) The question is on the resolution.
---------------------------------------------------------------------------
 3. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        Mr. Wood of Georgia: On that, Mr. Speaker, I demand the yeas 
    and nays.
        The yeas and nays were ordered.
        The question was taken; and there were--yeas 316, nays 0, not 
    voting 115, as follows: . . .
        So the resolution was agreed to.

Refusal to Be Sworn

Sec. 20.3 A committee files a privileged report which includes

[[Page 2432]]

    a contempt citation and facts relating to the refusal of a witness 
    to be sworn.

    On Sept. 10, 1973,(4) the Committee on Armed Services 
filed a privileged report relating to the refusal of G. Gordon Liddy to 
be sworn.
---------------------------------------------------------------------------
 4. 119 Cong. Rec. 28951, 28952, 93d Cong. 1st Sess. On the same date, 
        the House considered the report and adopted a resolution 
        certifying the matter to the appropriate U.S. attorney. See 
        also U.S. v Liddy, Crim. No. 74-117 (D.D.C. 1974).
---------------------------------------------------------------------------

                  Proceedings Against George Gordon Liddy

        Mr. [Lucien N.] Nedzi [of Michigan]: Mr. Speaker, I rise to a 
    question of the privilege of the House, and, by direction of the 
    Committee on Armed Services, I submit a privileged report (H. Rept. 
    No. 93-453).
        The Clerk read as follows:

                       Report Citing George Gordon Liddy

                                  introduction

            On Friday, July 20, 1973, during an executive session of 
        the Special Subcommittee on Intelligence of the House Committee 
        on Armed Services, Mr. George Gordon Liddy, who was called as a 
        witness, pursuant to a Writ of Habeas Corpus, refused to be 
        sworn prior to offering any testimony or claiming his privilege 
        under the Fifth Amendment. A quorum being present, the 
        subcommittee voted to report the matter to the full House 
        Committee on Armed Services with a recommendation for reference 
        to the House of Representatives under procedures which could 
        ultimately result in Mr. Liddy being cited for contempt of 
        Congress. [See Appendix 1.] On July 26, 1973 the House 
        Committee on Armed Services met to receive the report of the 
        Special Subcommittee on Intelligence with regard to the refusal 
        of Mr. Liddy to be sworn. On July 31, 1973, the full committee, 
        a quorum being present, on a record vote of 33-0, recommended 
        the adoption of a resolution as follows:

                                  ``resolution

            ``Resolved, That the Speaker of the House of 
        Representatives, certify the report of the Committee on Armed 
        Services of the House of Representatives as to the refusal of 
        George Gordon Liddy to be sworn or to take affirmation to 
        testify before a duly authorized subcommittee of the said 
        Committee on Armed Services on July 20, 1973, 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 the said George Gordon 
        Liddy may be proceeded against in the manner and form provided 
        by law.''
            [See Appendix 2.]

                                   background

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

[[Page 2433]]

        committee on July 20, 1973. [See Appendix 1, pp. 16-17.] Mr. 
        Liddy appeared as ordered.
            In his appearance Mr. Liddy was asked to rise and take the 
        oath. He refused to take the oath as a witness. Subsequently, 
        his counsel presented an extensive brief after which Mr. Liddy 
        again refused to take the oath. The witness claimed he had the 
        absolute right under the Fifth Amendment to remain completely 
        silent with regard to any offering before the subcommittee. He 
        sought to establish that contention based upon his current 
        conviction on the Watergate breakin which is under appeal, and 
        the possibility of future indictments being brought against 
        him. He further argued a Sixth Amendment right to avoid what he 
        claims to be prejudicial publicity in the media should he claim 
        his Fifth Amendment rights. Mr. Liddy agreed that his refusal 
        to be sworn was not based on any religious grounds.

                                   authority

            The Special Subcommittee on Intelligence is a duly 
        constituted subcommittee of the House Committee on Armed 
        Services pursuant to House Resolution 185, 93d Congress, and 
        the appointment made during the organization meeting of the 
        Committee on Armed Services on February 27, 1973. [See Appendix 
        1, pp. 11-16.] In addition, the chairman of the subcommittee 
        was given an order directing an inquiry into any CIA 
        involvement in Watergate-Ellsberg matters. The subcommittee 
        recommended those hearings on May 11, 1973, and in sixteen 
        sessions since that date has had before it some twenty-four 
        witnesses bearing on the subject of the inquiry. Prior to his 
        appearance on July 20, 1973, Mr. Liddy, through his attorney, 
        was advised by telephone of the purpose of the investigation 
        and was asked to acknowledge that information by letter. That 
        was done by Mr. Liddy's attorney on June 20, 1973. [See 
        Appendix 1, pp. 17-18]. As indicated above, Mr. Liddy was 
        properly before the subcommittee on a valid, duly executed Writ 
        of Habeas Corpus Ad Testificandum [See Appendix 1, p. 16.]

                                   conclusion

            The position of the committee is that all substantive and 
        procedural legal prerequisites have been satisfied to date and 
        that the House of Representatives should adopt the resolution 
        to refer the matter to the appropriate U.S. Attorney. Title 2, 
        United States Code, Sections 192 and 194 provide the necessary 
        vehicles for taking this action. Section 192 provides the basis 
        for indictment should a witness before either House of Congress 
        refuse to answer any question pertinent to the inquiry. Section 
        194 provides the vehicle for certifying such a result to the 
        appropriate U.S. Attorney. The central question is whether 
        failure to take the oath constitutes a refusal to give 
        testimony. We believe it does.
            Accordingly, it is the position of the committee that the 
        proceedings to date are in order and we recommend that the 
        House adopt the resolution to report the fact of the refusal of 
        George Gordon Liddy to be sworn to testify at a meeting of the 
        Special Subcommittee on Intelligence on July 20, 1973 together 
        with all the facts in connection therewith to the end that he 
        may be proceeded against as provided by law.
            A memorandum of law is contained in Appendix 
        3.(5)
---------------------------------------------------------------------------
 5. Appendices 1, 2, and 3, the hearings of the subcommittee, meetings 
        of the committee, and a legal memorandum, respectively, on pp. 
        28952-59, are omitted.
---------------------------------------------------------------------------

Sec. 20.4 The House agreed to a privileged resolution direct

[[Page 2434]]

    ing the Speaker to certify to the appropriate U.S. Attorney a 
    report citing a witness in contempt for refusing to be sworn or 
    make affirmation to testify at an investigative hearing.

    On Sept. 23, 1970,(6) the House by a vote of 337 yeas to 
14 nays approved House Resolution 1220, authorizing the Speaker to 
certify a report on a witness' refusal to testify to a U.S. Attorney.
---------------------------------------------------------------------------
 6. 116 Cong. Rec. 33269, 33278, 91st Cong. 2d Sess. See also, as 
        examples, 119 Cong. Rec. 28960, 28962, 28963, 93d Cong. 1st 
        Sess., Sept. 10, 1973, for the approval, by a vote of 334 yeas 
        to 11 nays, of H. Res. 536, directing the Speaker to certify to 
        the U.S. Attorney for the District of Columbia, H. Rept. No. 
        93-453, from the Committee on Armed Services, citing G. Gordon 
        Liddy for contempt for his refusal to be sworn or take 
        affirmation to testify before the Special Subcommittee on 
        Intelligence; and 93 Cong. Rec. 1128, 1129, 1137, 80th Cong. 
        1st Sess., Feb. 18, 1947, for the approval by 370 yeas to 1 nay 
        of H. Res. 104, directing the Speaker to certify to the U.S. 
        Attorney for the District of Columbia the report [H. Rept. No. 
        43] citing Gerhart Eisler for contempt for his refusal to be 
        sworn and testify before the Committee on Un-American 
        Activities. Counsel for Mr. Liddy filed a memorandum outlining 
        the English common law background of the fifth amendment. See 
        119 Cong. Rec. 28952, 28953, 93d Cong. 1st Sess., Sept. 10, 
        1973.
---------------------------------------------------------------------------

        Mr. [Richard H.] Ichord [of Missouri]: Mr. Speaker, by 
    direction of the House Committee on Internal Security, I offer a 
    privileged resolution (H. Res. 1220) and ask for its immediate 
    consideration.
        The Clerk read the resolution as follows:

                                  H. Res. 1220

            Resolved, That the Speaker of the House of Representatives 
        certify the report of the Committee on Internal Security of the 
        House of Representatives as to the refusal of Arnold S. Johnson 
        to be sworn or to make affirmation to testify before a duly 
        authorized subcommittee of the said Committee on Internal 
        Security, 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 
        the said Arnold S. Johnson may be proceeded against in the 
        manner and form provided by law. . . .

        Mr. Ichord: Mr. Speaker, I move the previous question on the 
    resolution.
        The previous question was ordered.
        The Speaker Pro Tempore:(7) The question is on the 
    resolution.
---------------------------------------------------------------------------
 7. Neal Smith (Iowa).
---------------------------------------------------------------------------

        The question was taken; and the Speaker pro tempore announced 
    that the ayes appeared to have it.
        Mr. [John M.] Ashbrook [of Ohio]: 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 Pro Tempore: 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.

[[Page 2435]]

        The question was taken; and there were--yeas 337, nays 14, not 
    voting 78, as follows: . . .
        So the resolution was agreed to.
        The result of the vote was announced as above recorded.
        The doors were opened.
        A motion to reconsider was laid on the table.

Refusal to Answer Questions

Sec. 20.5 A committee filed a privileged report which included a 
    contempt citation and facts relating to the refusal of a witness to 
    answer questions.

    On May 11, 1954,(8) the Committee on Un-American 
Activities offered a privileged report relating to the refusal of 
Francis X. T. Crowley to testify.(9)
---------------------------------------------------------------------------
 8. 100 Cong. Rec. 6400, 6401, 83d Cong. 2d Sess.
 9. This citation was rescinded after Mr. Crowley answered questions 
        before the committee. See Sec. 21.1, infra, for the report of 
        his purgation.
---------------------------------------------------------------------------

                 Proceedings Against Francis X. T. Crowley

        Mr. [Harold H.] Velde [of Illinois]: Mr. Speaker, by direction 
    of the Committee on Un-American Activities, I present a privileged 
    report (H. Rept. No. 1586).
        The Clerk read the report, as follows:

            The Committee on Un-American Activities, as created and 
        authorized by the House of Representatives, through the 
        enactment of Public Law 601, section 121, subsection (q)(2) of 
        the 79th Congress, and under House Resolution 5 of the 83d 
        Congress, caused to be issued a subpena to Francis X. T. 
        Crowley, 226 Second Avenue, Apartment 15, New York, N.Y. The 
        said subpena directed Francis X. T. Crowley to be and appear 
        before said Committee on Un-American Activities on May 4, 1953, 
        at the hour of 10:30 a.m., then and there to testify touching 
        matters of inquiry committed to said committee, and not to 
        depart without leave of said committee. The subpena served upon 
        said Francis X. T. Crowley is set forth in words and figures, 
        as follows:
            ``By authority of the House of Representatives of the 
        Congress of the United States of America, to George C. 
        Williams: You are hereby commanded to summon Francis X. T. 
        Crowley to be and appear before the Committee on Un-American 
        Activities, or a duly authorized subcommittee thereof, of the 
        House of Representatives of the United States, of which the 
        Honorable Harold H. Velde is chairman, in their chamber in the 
        city of New York, room 110, Federal Building, on Monday, Mav 4, 
        1953, at the hour of 10:30 a.m., then and there to testify 
        touching matters of inquiry committed to said committee; and he 
        is not to depart without leave of said committee.
            ``Herein fail not, and make return of this summons.
            ``Witness my hand and the seal of the House of 
        Representatives of the United States, at the city of 
        Washington, this 9th day of April, 1953.
                                            ``Harold H. Velde,
                                                     ``Chairman.

            ``Attest: Lyle O. Snader,
                                                      ``Clerk.''

            The said subpena was duly served as appears by the return 
        made thereon by George C. Williams, in

[[Page 2436]]

        vestigator, who was duly authorized to serve the said subpena. 
        The return of the service by the said George C. Williams, being 
        endorsed thereon, is set forth in words and figures, as 
        follows:
            ``Subpena for Francis X. T. Crowley, before the Committee 
        on Un-American [Activities]. Served at home, 226 2d Avenue, 
        Apt. 15, N.Y.C. on 4-24-53 at 6:32 p.m.
                                        ``George. C. Williams,
                     ``Investigator, House of Representatives.''

            On May 4, 1953, a telegram was sent to Francis X. T. 
        Crowley by Harold H. Velde, chairman of the House Committee on 
        Un-American Activities, which is set forth in words and 
        figures, as follows:
            ``New York, N.Y., May 4, 1953.
            ``Francis X. Crowley, 226 Second Ave., New York City:
            ``Your appearance before Committee on Un-American 
        Activities is hereby postponed to Monday, June 8, 1953, 10:30 
        a.m., 226 House Office Building, Washington, D.C.

                                            ``Harold H. Velde,
                                                   ``Chairman.''

            The said Francis X. T. Crowley, pursuant to said subpena 
        and in compliance therewith, appeared before the said committee 
        on June 8, 1953, to give such testimony as required under and 
        by virtue of Public Law 601, section 121, subsection (q)(2) of 
        the 79th Congress, and under House Resolution 5 of the 83d 
        Congress. The said Francis X. T. Crowley, having appeared as a 
        witness and having been asked questions, namely:
            ``When you were in Boston, Mass. . . . were you a member of 
        the West End Club of the Communist Party?
            ``Have you ever been associated with any members of the 
        West End Club of Boston?
            ``Have you ever at any time been a member of the Communist 
        Party?'' which questions were pertinent to the subject under 
        inquiry, refused to answer such questions; and as a result of 
        Francis X. T. Crowley's refusal to answer the aforesaid 
        questions, your committee was prevented from receiving 
        testimony and information concerning a matter committed to said 
        committee in accordance with the terms of the subpena served 
        upon the said Francis X. T. Crowley.
            The record of the proceedings before the committee on June 
        8, 1953, during which Francis X. T. Crowley refused to answer 
        the aforesaid questions pertinent to the subject under inquiry 
        is set forth in fact as follows:

                               ``United States House  
                                   of Representatives,
                                       ``Subcommittee of
                                             the Committee
                                  on Un-American Activities,

                                           ``Washington, D.C.,

                                            Monday, June 8,1965.

                              ``executive session

            The subcommittee of the Committee on Un-American Activities 
        met, pursuant to call, at 10:43 a.m. in room 226 of the Old 
        House Office Building, Hon. Bernard W. Kearney, presiding.
            Committee member present: Representative Bernard W. Kearney 
        (presiding).
                     *      *      *      *      *

            ``Mr. Kearney. The committee will be in order.
            ``Let the record show that, for the purpose of the hearing 
        this morning, a subcommittee has been set up composed of Mr. 
        Kearney from New York. The hearing will be conducted under the 
        authority granted for subcommittee by the chairman of the 
        committee, Mr. Velde.
                     *      *      *      *      *

[[Page 2437]]

            ``Will you stand and be sworn?
            ``Do you solemnly swear the testimony you shall give before 
        this subcommittee will be the truth, the whole truth, and 
        nothing but the truth, so help you God?
            ``Mr. Crowley. I do.

                  ``testimony of francis xavier thomas crowley

            ``Mr. Kunzig. Mr. Crowley, are you accompanied by counsel 
        here this morning?
            ``Mr. Crowley. No; I am by myself.
            ``Mr. Kunzig. You understand, of course, your right to be 
        accompanied by counsel if you so desire?
            ``Mr. Crowley. I do.
            ``Mr. Kunzig. And it is your wish to be here present at 
        this hearing today without counsel?

            ``Mr. Crowley. Yes.
            ``Mr. Kunzig. Would you give your full name, please?
            ``Mr. Crowley. Francis Xavier Thomas Crowley. The Thomas 
        was a confirmation.
            ``Mr. Kunzig. And your present address, Mr. Crowley?
            ``Mr. Crowley. 226 Second Avenue, New York.
            ``Mr. Kunzig. And what is your age at the present time?
            ``Mr. Crowley. Twenty-seven.
                     *      *      *      *      *

            ``Mr. Kunzig. Mr. Crowley, when you were in Boston, Mass., 
        that period of time prior to going to the University of 
        Michigan that you have just told us about, were you a member of 
        the West End Club of the Communist Party?
            ``Mr. Crowley. Well, I can't answer that.
            ``Mr. Kearney. What do you mean--you can't answer it?
            ``Mr. Crowley. I won't answer it.
            ``Mr. Kearney. On what grounds?
            ``Mr. Crowley. It goes against my conscience to speak about 
        it. I don't believe I should be in a position where I have to 
        speak about anyone except my priest, and I have spoken to him 
        about it. . . .
            ``Mr. Kearney. . . . Have you ever been associated with any 
        members of the West End Club of Boston?
            ``Mr. Crowley. That comes to the same thing. I won't answer 
        that either.
            ``Mr. Kearney. You won't answer it?
                     *      *      *      *      *

            ``Mr. Crowley. No.
            ``Mr. Kearney. As I understand your testimony, you just 
        refuse to answer any questions concerning your activities with 
        communism?
            ``Mr. Crowley. Yes, sir.
            ``Mr. Kearney. Are you now a member of the Communist Party?
            ``Mr. Crowley. No.
            ``Mr. Kearney. Do you have any other questions?
            ``Mr. Kunzig. I think we better follow it up by asking: 
        Have you ever at any time been a member of the Communist Party?
            ``Mr. Crowley. I refuse to answer that.''
                     *      *      *      *      *

            Because of the foregoing, the said Committee on Un-American 
        Activities was deprived of answers to pertinent questions 
        propounded to said Francis X. T. Crowley relative to the 
        subject matter which, under Public Law 601, section 121, 
        subsection (q)(2) of the 79th Congress, and under House 
        Resolution 5 of the 83d Congress, the said committee was 
        instructed to investigate, and the refusal of the witness to 
        answer questions, namely:
            ``When you were in Boston, Mass. . . . were you a member of

[[Page 2438]]

        the West End Club of the Communist Party?
            ``Have you ever been associated with any members of the 
        West End Club of Boston?
            ``Have you ever at any time been a member of the Communist 
        Party?'' which questions were pertinent to the subject under 
        inquiry, is a violation of the subpena under which the witness 
        had previously appeared, and his refusal to answer the 
        aforesaid questions deprived your committee of necessary and 
        pertinent testimony, and places the said witness in contempt of 
        the House of Representatives of the United States.

Sec. 20.6 The House agreed to a privileged resolution directing the 
    Speaker to certify to the U.S. Attorney a report citing a witness 
    in contempt for refusing to answer questions at an investigative 
    hearing.

    On Sept. 3, 1959,(10) the House by voice vote approved a 
resolution directing the Speaker to certify a report citing a witness 
in contempt.
---------------------------------------------------------------------------
10. 105 Cong. Rec. 17934, 17935, 86th Cong. 1st Sess. See also, for 
        example, 101 Cong. Rec. 11521, 84th Cong. 1st Sess., July 26, 
        1955, for the voice vote approval of H. Res. 315, directing the 
        Speaker to certify to the U.S. Attorney for the District of 
        Columbia H. Rept. No. 1406, citing John T. Gojack, in contempt 
        for refusing to testify before the Committee on Un-American 
        Activities; and 100 Cong. Rec. 11613, 83d Cong. 2d Sess., July 
        23, 1954, for the voice vote approval of H. Res. 666, directing 
        the Speaker to certify to the U.S. Attorney for the District of 
        Columbia H. Rept. No. 2457, citing Lloyd Barenblatt in contempt 
        for refusing to testify before the Committee on Un-American 
        Activities.
            For related court proceedings, see Gojack v United States, 
        280 F2d 678 (D.C. Cir. 1960), rev'd sub nom., United States v 
        Russell, 369 U.S. 749 (1962), wherein the court, in reversing 
        defendant's conviction, held that a grand jury indictment under 
        the contempt statute, 2 USC Sec. 192, must state the subject 
        matter under inquiry at the time of defendant's refusal to 
        answer the committee's questions, so as to enable courts to 
        determine the pertinency of the questions. See also Popper v 
        United States, 306 F2d 290 (D.C. Cir. 1962), wherein the 
        defendant's conviction was reversed because the indictment had 
        insufficiently set forth the question under inquiry. And see 
        Barenblatt v United States, 240 F2d 875 (D.C. Cir. 1957), 
        vacated and rem'd, 354 U.S. 930, 252 F2d 129 (1958), aff'd., 
        360 U.S. 109 (defendant's conviction upheld).
---------------------------------------------------------------------------

                     Proceedings Against Martin Popper

        Mr. [Francis E.] Walter [of Pennsylvania]: Mr. Speaker, I offer 
    a privileged resolution (H. Res. 374) 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

[[Page 2439]]

        Representatives as to the refusal of Martin Popper to answer 
        questions before a duly constituted subcommittee of the 
        Committee on UnAmerican Activities, together with all of 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 the said Martin Popper may be 
        proceeded against in the manner and form provided by law. . . .

        The Speaker: (11) The question is on the resolution.
---------------------------------------------------------------------------
11. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        The resolution was agreed to.
        A motion to reconsider was laid on the table.

Refusal to Answer Questions and Departure Without Leave

Sec. 20.7 A committee filed a privileged report citing a witness in 
    contempt for his failure to answer questions and his departure 
    without leave.

    On Oct. 18, 1966,(12) the Committee on Un-American 
Activities offered a privileged report citing Dr. Jeremiah Stamler in 
contempt for his refusal to answer questions and his departure without 
leave.
---------------------------------------------------------------------------
12. 112 Cong. Rec. 27500, 27501, 89th Cong. 2d Sess. The House adopted 
        a resolution (H. Res. 1062) certifying the contempt on the 
        following day. Id. at pp. 27641, 27642. See also Stamler v 
        Willis, 415 F2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 
        929 (1970).
---------------------------------------------------------------------------

        Mr. [Edwin E.] Willis [of Louisiana]: Mr. Speaker, I rise to a 
    question of the privilege of the House and by direction of the 
    Committee on Un-American Activities I submit a privileged report 
    (Rept. No. 2306).
        The Clerk read as follows:

                      Proceedings Against Jeremiah Stamler

        [Pursuant to Title 2, United States Code, Sections 192 and 194]

            The Committee on Un-American Activities, as created and 
        authorized by the House of Representatives, through the 
        enactment of Public Law 601 of the 79th Congress, section 121, 
        subsection (q)(2), and under House Resolution 8 of the 89th 
        Congress, duly authorized and issued a subpena to Jeremiah 
        Stamler. The subpena directed Jeremiah Stamler to be and appear 
        before the said Committee on Un-American Activities, of which 
        the Honorable Edwin E. Willis is chairman, or a duly appointed 
        subcommittee thereof. . . .
            This subpena was duly served as appears by the return 
        thereon made by Neil E. Wetterman, who was duly authorized to 
        serve it. The return of service of said subpena is set forth in 
        words and figures as follows: . . .
            The said Jeremiah Stamler, summoned as aforesaid, appeared 
        and was called as a witness on May 27, 1965, to give testimony, 
        as required by the said subpena, at a meeting of a duly 
        authorized subcommittee of the Committee on Un-American 
        Activities at the Old U.S. Court of Appeals Building in 
        Chicago, Ill. He was accompanied by his counsel, Albert E. 
        Jenner, Jr., and co-counsel, Thomas P. Sullivan, Esquires.
            Having been sworn as a witness, he was asked to state his 
        full name and residence for the record, to which he responded, 
        giving same.
            Thereafter, the witness was asked the question, namely: 
        ``Would you state the place and date of your birth, Dr. 
        Stamler?'' which question

[[Page 2440]]

        was pertinent to the subject under inquiry. He refused to 
        answer said question and, in addition, stated that he would not 
        answer any further questions that might be put to him touching 
        matters of inquiry committed to said subcommittee.
            The witness then departed the hearing room without leave of 
        said subcommittee.
            The foregoing refusals by Jeremiah Stamler to answer the 
        aforesaid question and to answer any further questions, and his 
        willful departure without leave, deprived the Committee on Un-
        American Activities of pertinent testimony regarding matters 
        which the said committee was instructed by law and House 
        resolution to investigate, and place the said Jeremiah Stamler 
        in contempt of the House of Representatives of the United 
        States.
            Pursuant to resolution of the Committee on Un-American 
        Activities duly adopted at a meeting held January 13, 1966, the 
        facts relating to the aforesaid failures of Jeremiah Stamler 
        are hereby reported to the House of Representatives, to the end 
        that the said Jeremiah Stamler may be proceeded against for 
        contempt of the House of Representatives in the manner and form 
        provided by law.
            The record of the proceedings before the said subcommittee, 
        so far as it relates to the appearance of Jeremiah Stamler, 
        including the statement by the chairman of the subject and 
        matter under inquiry, is set forth in Appendix I, attached 
        hereto and made a part hereof.
            Other pertinent committee proceedings are set forth in 
        Appendix II, and made a part hereof.(13)
---------------------------------------------------------------------------
13. The appendices have been omitted.
---------------------------------------------------------------------------

Sec. 20.8 The House agreed to a privileged resolution directing the 
    Speaker to certify a report citing a witness in contempt for 
    refusal to testify and his departure without leave.

    On Oct. 18, 1966,(14) the House by voice vote approved a 
resolution directing the Speaker to certify a report citing a witness 
in contempt.(15)
---------------------------------------------------------------------------
14. 112 Cong. Rec. 27448, 27484, 27485, 89th Cong. 2d Sess. See also, 
        for example, 112 Cong. Rec. 27495, 27500, 89th Cong. 2d Sess., 
        for the voice vote approval of H. Res. 1061, directing the 
        Speaker to certify to the U.S. Attorney for the Northern 
        District of Illinois H. Rept. No. 2305, citing Yolanda Hall in 
        contempt for her refusal to testify and her departure without 
        leave before the Committee on Un-American Activities.
15. Prior to approving the resolution, the House by a vote of 90 yeas 
        to 181 nays rejected the motion of Mr. Silvio O. Conte (Mass.), 
        to recommit this resolution to a select committee of seven 
        members to examine the sufficiency of the citations. See 
        Sec. 17.2, supra, for the text of this motion to recommit.
---------------------------------------------------------------------------

                 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.
        The Clerk read the resolution, as follows:

                                  H. Res. 1060

            Resolved, That the Speaker of the House of Representatives 
        certify the

[[Page 2441]]

        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 bylaw. . . .

        The Speaker: (16) The question is on the adoption of 
    the resolution.
---------------------------------------------------------------------------
16. John W. McCormack (Mass.).
---------------------------------------------------------------------------

            The question was taken, and the Speaker announced that the 
        ayes appeared to have it.

Refusal to Produce Materials

Sec. 20.9 A committee filed a privileged report which included a 
    contempt citation and facts relating to the refusal of a witness to 
    produce subpenaed materials.

    On Aug. 23, 1960,(17) the Committee on the Judiciary 
filed a privileged report relating to the refusal of a witness to 
produce subpenaed materials.
---------------------------------------------------------------------------
17. 106 Cong. Rec. 17313-15, 86th Cong. 2d Sess. A resolution 
        certifying the contemptuous conduct was acted on immediately 
        after the report was filed and considered.
---------------------------------------------------------------------------

        Mr. [Emanuel] Celler [of New York]: Mr. Speaker, I send to the 
    desk a privileged report (Reps. No. 2120) from the Committee on the 
    Judiciary in relation to the conduct of S. Sloan Colt.
        The Speaker: (18) The Clerk will read the report.
---------------------------------------------------------------------------
18. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        The Clerk read as follows:

                       Proceedings Against S. Sloan Colt

            Subcommittee No. 5 of the Committee on the Judiciary, as 
        created and authorized by the House of Representatives through 
        the enactment of Public Law 601, section 121, of the 79th 
        Congress, and under House Resolution 27 and House Resolution 
        530, both of the 86th Congress, caused to be issued a subpena 
        duces tecum to S. Sloan Colt, chairman, board of commissioners 
        of the Port of New York Authority, 111 Eighth Avenue, New York, 
        N.Y. The subpena directed S. Sloan Colt to be and appear before 
        Subcommittee No. 5 of the Committee on the Judiciary, at 10 
        a.m. on June 29, 1960, in their chamber in the city of 
        Washington, and to bring with him from the files of the Port of 
        New York Authority certain specified documents, and to testify 
        touching matters of inquiry committed to the subcommittee.
            The subpena was duly served as appears by the return made 
        thereon by counsel for the committee who was duly authorized to 
        serve the subpena.
            S. Sloan Colt, pursuant to the subpena duly served upon 
        him, appeared before Subcommittee No. 5 of the Committee on the 
        Judiciary on June 29, 1960, to give testimony as required by 
        Public Law 601, section 121, of the 79th Congress, and by House 
        Resolutions 27 and 530 of the 86th Congress. However, S. Sloan 
        Colt, having appeared as a witness and having complied in part 
        with the

[[Page 2442]]

        subpena duces tecum served upon him by bringing with him part 
        of the documents demanded therein, (1) failed and refused to 
        produce certain other documents in compliance with the subpena 
        duces tecum, which documents are pertinent to the subject 
        matter under inquiry, and (2) failed and refused to produce 
        certain documents as ordered by the subcommittee, which 
        documents are pertinent to the subject matter under inquiry.
            At those proceedings the subcommittee chairman explained in 
        detail the authority for the subcommittee's inquiry, the 
        purpose of the inquiry, and its scope. The subcommittee also 
        gave to the witness a lengthy and detailed explanation of the 
        pertinence to its inquiry of each category of documents 
        demanded in the subpena served upon the witness. 
        Notwithstanding these explanations and notwithstanding a 
        direction by the subcommittee to produce the documents required 
        by the subpena, S. Sloan Colt contumaciously refused to produce 
        the following categories of documents under his control and 
        custody:
            (1) Internal financial reports, including budgetary 
        analyses, postclosing trial balances, and internal audits; and 
        management and financial reports prepared by outside 
        consultants;
            (2) All agenda of meetings of the board of commissioners 
        and of its committees; all reports to the commissioners by 
        members of the executive staff; and
            (3) All communications in the files of the Port of New York 
        Authority and in the files of any of its officers and employees 
        including correspondence, interoffice and other memorandums, 
        and reports relating to:
            (a) The negotiation, execution, and performance of 
        construction contracts; negotiation, execution, and performance 
        of insurance contracts, policies, and arrangements; and 
        negotiation, execution, and performance of the public relations 
        contracts, policies, and arrangements;
            (b) The acquisition, transfer, and leasing of real estate;
            (c) The negotiation and issuance of revenue bonds;
            (d) The policies of the authority with respect to the 
        development of rail transportation.
            The subcommittee was thereby deprived by S. Sloan Colt of 
        information and evidence pertinent to matters of inquiry 
        committed to it under House Resolutions 27 and 530, 86th 
        Congress. His persistent and illegal refusal to supply the 
        documents as ordered deprived the subcommittee of necessary and 
        pertinent evidence and places him in contempt of the House of 
        Representatives.
            Incorporated herein as appendix I is the record of the 
        proceedings before Subcommittee No. 5 of the Committee on the 
        Judiciary on the return of the subpenas duces tecum served upon 
        S. Sloan Colt and others. The record of proceedings contains, 
        with respect to Mr. Colt:
            (1) The full text of the subpena duces tecum (appendix, pp. 
        21-22);
            (2) The return of service of the subpena by counsel for the 
        committee, set forth in words and figures (appendix, p. 26);
            (3) The failure and refusal of the witness to produce 
        documents required by the subpena issued to and served upon him 
        (appendix, pp. 23-25);
            (4) The explanation given to the witness as to the 
        authority for, purpose and scope of, the subcommittee's inquiry 
        (appendix, pp. 1-20);
            (5) The explanation given the witness of the pertinence of 
        each category of requested documents (appendix, pp. 48-52);
            (6) The subcommittee's direction to the witness to produce 
        the required documents (appendix, pp. 52-53);

[[Page 2443]]

            (7) The failure and refusal of the witness to produce the 
        documents pursuant to direction (appendix, pp. 53-54);
            (8) The ruling of the chairman that the witness is in 
        default (appendix, p. 55).

                     other pertinent committee proceedings

            At the organizational meeting of the Committee on the 
        Judiciary for the 86th Congress, held on the 27th day of 
        January 1959, Subcommittee No. 5 was appointed and authorized 
        to act upon matters referred to it by the chairman. On June 8, 
        1960, at an executive session of Subcommittee No. 5 of the 
        Committee on the Judiciary, at which Chairman Emanuel Celler, 
        Peter W. Rodino, Jr., Byron G. Rogers, Lester Holtzman, Herman 
        Toll, William M. McCulloch, and George Meader were present, 
        Subcommittee No. 5 formally instituted an inquiry into the 
        activities and operations of the Port of New York Authority 
        under the interstate compacts approved by Congress in 1921 and 
        1922. At that meeting the subcommittee also unanimously 
        resolved to request the following specified items from the 
        files of the Port of New York Authority by letter and to 
        subpena the same documents from the appropriate officials in 
        the event this information was not voluntarily supplied:

            (1) All bylaws, organization manuals, rules, and 
        regulations;
            (2) Annual financial reports; internal financial reports, 
        including budgetary analyses, postclosing trial balances, and 
        internal audits; and management and financial reports prepared 
        by outside consultants;
            (3) All agenda and minutes of meetings of the board of 
        commissioners and of its committees; all reports to the 
        commissioners by members of the executive staff;
            (4) All communications in the files of the Port of New York 
        Authority and in the files of any of its officers or employees 
        including correspondence, interoffice and other memorandums, 
        and reports relating to-
            (a) The negotiation, execution, and performance of 
        construction contracts; negotiation, execution, and performance 
        of insurance contracts, policies, and arrangements; and 
        negotiation, execution, and performance of public relations 
        contracts, policies, and arrangements;
            (b) The acquisition, transfer, and leasing of real estate;
            (c) The negotiation and issuance of revenue bonds;
            (d) The policies of the authority with respect to the 
        development of rail transportation.
            On June 29, 1960, following the appearance of the aforesaid 
        witness, Subcommittee No. 5 of the Committee on the Judiciary, 
        at an executive session at which all members of the 
        subcommittee were present, unanimously resolved to report the 
        contumacious conduct of S. Sloan Colt and others to the 
        Committee on the Judiciary with the recommendation that the 
        committee report this conduct to the House of Representatives 
        together with all particulars and recommend that the House cite 
        S. Sloan Colt for contempt of the House of Representatives.
            At an executive session on June 30, 1960, the Committee on 
        the Judiciary approved the recommendations of Subcommittee No. 
        5 to report to the House all details concerning the 
        contumacious conduct of S. Sloan Colt and others, and resolved 
        to recommend that S. Sloan Colt be cited for contempt of the 
        House of Representatives.

                Minority Views of Representative John V. Lindsay

            I cannot agree with the majority recommendations in the 
        committee

[[Page 2444]]

        report. The committee proceeding, calculated to form a basis 
        for contempt citations under title 2, United States Code, 
        section 192, in my opinion constitutes an unprecedented, 
        unlawful, and unconstitutional exercise of Federal authority 
        over a bistate agency, which can and should be avoided. The 
        Port of New York Authority was created by the States of New 
        York and New Jersey with the consent of Congress to exercise 
        delegations of State, not Federal, powers.
            My objections are threefold: (1) The committee acted 
        without legal authority and exceeded its jurisdiction; (2) the 
        committee lacked a legislative purpose in inquiring into the 
        internal affairs of a bistate agency; and (3) the committee 
        inadvisably and without caution initiated an unprecedented 
        exercise of Federal control in the delicate area of State 
        sovereignty despite the pleas of the two interested Governors 
        to be accorded a hearing before the return fate of the 
        subpenas. As a result, and I emphasize this point, the 
        documentary material, which the witnesses did not produce, was 
        withheld pursuant to written instructions from Governors 
        Rockefeller and Meyner. The witnesses were damned if they 
        complied with the subpenas and damned if they didn't. . . .

                  Minority Views of Representative John H. Ray

            The majority of the Judiciary Committee recommends that 
        contempt citations under title 2, United States Code, section 
        192, be issued against the chairman, the executive director, 
        and the secretary of the Port of New York Authority. In my 
        opinion the action so recommended by the majority would not 
        only be unprecedented and unwise as a matter of Federal and 
        State relations, it is not sanctioned by law and should and 
        would be held unconstitutional.

Sec. 20.10 The House agreed to a privileged resolution directing the 
    Speaker to certify to the appropriate U.S. Attorney a report citing 
    a witness in contempt for refusing to produce subpenaed materials.

    On Aug. 2, 1946,(19) the House by voice vote approved a 
resolu
---------------------------------------------------------------------------
19. 92 Cong. Rec. 10748, 79th Cong. 2d Sess. See also, for example, 112 
        Cong. Rec. 1754, 1763, 89th Cong. 2d Sess., Feb. 2, 1966, for 
        the approval, on a vote of 344 yeas to 28 nays, of H. Res. 699, 
        directing the Speaker to certify to the U.S. Attorney for the 
        District of Columbia, H. Rept. No. 1241, citing Robert M. 
        Shelton, allegedly of the Ku Klux Klan, in contempt for refusal 
        to produce subpenaed materials to the Committee on Un-American 
        Activities (resolutions against other alleged Klan members 
        follow the Shelton resolution. In Shelton v United States, 404 
        F2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969), 
        the defendant's conviction was upheld by the appellate court. 
        The same defendant had earlier been convicted of contempt of 
        Congress following an appearance before the Senate Judiciary 
        Committee's Subcommittee on Internal Security. United States v 
        Shelton, 148 F Supp 926 (D.D.C. 1957), aff'd., 280 F2d 701, 
        rev'd and rem'd, 369 U.S. 749 (1962), 211 F Supp 829, aff'd., 
        327 F2d 601 (D.C. Cir. 1963).
            See 106 Cong. Rec. 17313, 86th Cong. 2d Sess., Aug. 23, 
        1960, for the approval, on a vote of 190 yeas to 60 nays, of H. 
        Res. 606, directing the Speaker to certify to the U.S. Attorney 
        for the District of Columbia H. Rept. No. 2117, citing Austin 
        J. Tobin, of the Port of New York Authority in contempt for 
        refusal to produce subpenaed materials to Subcommittee No. 5, 
        of the Committee on the Judiciary (resolutions against other 
        Port Authority officials follow the Tobin resolution).
            In United States v Tobin, 195 F Supp 588 (D.D.C. 1961), 
        rev'd 306 F2d 270, cert. denied, 371 U.S. 902 (1962), 
        defendant's conviction was reversed on appeal, the court 
        holding that certain documents demanded by the committee were 
        not within the scope permitted by the pertinent congressional 
        resolution.
---------------------------------------------------------------------------

[[Page 2445]]

tion citing a witness in contempt for refusal to produce subpenaed 
materials.

                    Proceedings Against Richard Morford

        The Speaker: (20) The Clerk will read the 
    resolution.
---------------------------------------------------------------------------
20. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        The Clerk read as follows:

                              House Resolution 752

            Resolved, That the Speaker of the House of Representatives 
        certify the foregoing report of the House Committee on Un-
        American Activities as to the willful and deliberate refusal of 
        the following person to produce before the said committee for 
        its inspection certain books, papers, and records which had 
        been duly subpenaed, and to testify under oath concerning all 
        pertinent 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 person named below may be 
        proceeded against in the manner and form provided by law; 
        Richard Morford, 114 East Thirty-second Street, New York, N.Y. 
        . . .

        The previous question was ordered.
        The Speaker: The question is on the resolution.
        The question was taken; and on a division (demanded by Mr. 
    Marcantonio) there were--ayes 166, noes 17.
        So the resolution was agreed to.
        A motion to reconsider was laid on the table.(21)
---------------------------------------------------------------------------
21. See also Morford v United States, 72 F Supp 58 (D.D.C. 1947), 
        aff'd., 176 F2d 54 (1949), rev'd 339 U.S. 258 (1950), rem'd, 
        184 F2d 864, cert. denied, 340 U.S. 878 (1950). The Supreme 
        Court initially reversed defendant's conviction because 
        defendant had not been permitted to question four government 
        employees on the jury panel as to the impact of Executive Order 
        No. 9835 (the ``Loyalty Order'') on their ability to render a 
        just and fair verdict. On retrial, defendant waived a jury and 
        was convicted again.
---------------------------------------------------------------------------

Senate Precedents

Sec. 20.11 The Senate agreed to a resolution directing its President to 
    certify to a U.S. Attorney a report citing a witness in contempt 
    for failing to appear before an investigative hearing.

    On May 6, 1953,(22) the Senate approved a resolution 
directing its
---------------------------------------------------------------------------
22. 99 Cong. Rec. 4603, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 2446]]

President to certify to a U.S. Attorney a contempt citation.

        The Presiding Officer: (23) Is there objection to 
    the consideration of the resolution? There being no objection, the 
    resolution (S. Res. 103) was considered and agreed to, as follows:
---------------------------------------------------------------------------
23. Alvin R. Bush (Pa.).
---------------------------------------------------------------------------

            Resolved, That the President of the Senate certify the 
        report of the Committee on Government Operations of the United 
        States Senate as to the willful default of Russell W. Duke in 
        failing to appear to testify before the Senate Permanent 
        Subcommittee on Investigations of the Committee on Government 
        Operations of the United States Senate in response to a 
        subpena, together with all the facts in connection therewith, 
        under the seal of the United States Senate, to the United 
        States attorney for the District of Columbia, to the end that 
        the said Russell W. Duke may be proceeded against in the manner 
        and form provided by law.

Sec. 20.12 The Senate agreed to a resolution directing its President to 
    certify to a U.S. Attorney a report citing a witness in contempt 
    for refusing to answer questions at an investigative hearing.

    On Feb. 4, 1955,(24) the Senate approved a resolution 
directing its President to certify to a U.S. Attorney a contempt 
citation.
---------------------------------------------------------------------------
24. 101 Cong. Rec. 1159, 84th Cong. 1st Sess. See also, for example, 
        101 Cong. Rec. 11678, 84th Cong. 1st Sess., July 27, 1955, for 
        the voice vote approval of S. Res. 129, citing Joseph Starobin 
        in contempt for refusing to answer questions before the Senate 
        Subcommittee to Investigate the Administration of the Internal 
        Security Act and other Internal Security Laws of the Committee 
        on the Judiciary; and 98 Cong. Rec. 1311, 82d Cong. 2d Sess., 
        Feb. 25, 1952, for the voice vote approval of S. Res. 281 and 
        282, citing Roger Simkins and Emmitt Warring, respectively, in 
        contempt for refusing to answer questions before the Committee 
        on the District of Columbia.
---------------------------------------------------------------------------

           Citation of Diantha D. Hoag for Contempt of the Senate

        Mr. [Earle C.] Clements [of Kentucky]: Mr. President, I move 
    that the Senate proceed to the consideration of Calendar No. 3, 
    Senate Resolution 31.
        The Presiding Officer: (1) The resolution will be 
    stated by title for the in-formation of the Senate.
---------------------------------------------------------------------------
 1. William S. Hill (Colo.).
---------------------------------------------------------------------------

        The Legislative Clerk: A resolution (S. Res. 31) citing Diantha 
    D. Hoag for contempt of the Senate.
        The Presiding Officer: The question is on agreeing to the 
    motion of the Senator from Kentucky.
        The motion was agreed to, and the Senate proceeded to consider 
    the resolution which was read as follows:

            Resolved, That the President of the Senate certify the 
        report of the Committee on Government Operations of the United 
        States Senate as to the refusal of Diantha D. Hoag to answer 
        questions before the Senate Permanent Subcommittee on 
        Investigations, said refusal to answer being pertinent to the 
        subject matter under inquiry, together with all the facts in 
        connection therewith, under

[[Page 2447]]

        the seal of the United States Senate to the United States 
        attorney for the District of Columbia, to the end that the said 
        Diantha D. Hoag may be proceeded against in the manner and form 
        provided by law.

        Mr. [George H.] Bender [of Ohio]: Mr. President, the Senator 
    from Wisconsin [Mr. McCarthy], who reported the resolution to the 
    Senate, is absent, and he asked me to pursue it for him. However, I 
    am sure there is no need for any speech on the subject.
        The Presiding Officer: The question is on agreeing to the 
    resolution.
        The resolution (S. Res. 31) was agreed to.(2)
---------------------------------------------------------------------------
 2. See also United States v Hoag, 142 F Supp 667 (D.D.C. 1956). The 
        defendant was found not guilty, the court ruling that by 
        answering a limited number of the committee's questions, she 
        did not waive her privilege against self-incrimination under 
        the fifth amendment. Thus, defendant's subsequent refusal to 
        answer questions regarding possible activities on behalf of the 
        Communist Party did not constitute violation of the statute 
        making it an offense for a person to refuse to testify (2 USC 
        Sec. 192).
---------------------------------------------------------------------------

Sec. 20.13 The Senate agreed to a resolution directing its President to 
    certify to the appropriate U.S. Attorney a report citing a witness 
    in contempt for his refusal to answer questions and his departure 
    without leave at an investigative hearing.

    On July 19, 1968,(3) the Senate approved a resolution 
directing its President to certify to a U.S. Attorney a report citing a 
witness in contempt.
---------------------------------------------------------------------------
 3. 114 Cong. Rec. 22351, 22361, 22362, 90th Cong. 2d Sess. See also 
        United States v Fort, 443 F2d 670, cert. denied, 403 U.S. 932 
        (1971), wherein the defendant's conviction was upheld. The 
        right to confront witnesses was not applicable, in the court's 
        view, because a legislative inquiry is not the same as a 
        criminal proceeding.
---------------------------------------------------------------------------

                    Citation for Contempt of the Senate

        Mr. [Robert C.] Byrd of West Virginia: Mr. President, I ask 
    unanimous consent that the Senate proceed to the consideration of 
    Senate Resolution 379.(4)
---------------------------------------------------------------------------
 4. Parliamentarian's Note: A resolution citing a person for contempt 
        for refusing to answer questions is privileged under Senate 
        rules. This particular resolution was called up by unanimous 
        consent because it was not controversial and was considered out 
        of the regular order of business.
---------------------------------------------------------------------------

        The Presiding Officer: (5) The resolution will be 
    stated by title.
---------------------------------------------------------------------------
 5. Joseph D. Tydings (Md.).
---------------------------------------------------------------------------

        The Assistant Legislative Clerk: A resolution (S. Res. 379) 
    citing Jeff Fort for contempt of the Senate.
        The Presiding Officer: Is there objection to the present 
    consideration of the resolution?
        There being no objection, the Senate proceeded to consider the 
    resolution, as follows:

                                  S. Res. 379

            Resolved, That the President of the Senate certify the 
        report of the Com

[[Page 2448]]

        mittee on Government Operations of the United States Senate on 
        the appearance of Jeff Fort before the Senate Permanent 
        Subcommittee on Investigations of the Committee on Government 
        Operations on July 9, 1968, in Washington, District of 
        Columbia, at which he--
            (1) refused to answer one question,
            (2) refused to answer any and all questions that were to be 
        put to him by the subcommittee,
            (3) departed the hearing without leave, such conduct and 
        refusals to answer questions being pertinent to the subject 
        matter under inquiry, together with all the facts in connection 
        therewith, under the seal of the United States Senate, to the 
        United States Attorney for the District of Columbia, to the end 
        that the said Jeff Fort may be proceeded against in the manner 
        and form provided by law. . . .(6)
---------------------------------------------------------------------------
 6. The excerpts from the report are omitted.
---------------------------------------------------------------------------

        The Presiding Officer: All time has been yielded back. The 
    question is on agreeing to Senate Resolution 379. On this question, 
    the yeas and nays have been ordered, and the clerk will call the 
    roll. . . .
        The result was announced--yeas 80, nays 0, as follows: . . .
        So the resolution (S. Res. 379) was agreed to.

Sec. 20.14 The Senate agreed to a resolution directing its President to 
    certify to a U.S. Attorney a report citing witnesses in contempt 
    for refusing to produce subpenaed materials.

    On May 5, 1969,(7) the Senate agreed to a resolution 
directing its President to certify to a U.S. Attorney a contempt 
citation.
---------------------------------------------------------------------------
 7. 115 Cong. Rec. 11278, 91st Cong. 1st Sess. See United States v 
        McSurely, 473 F2d 1178 (D.C. Cir. 1972), wherein defendant's 
        conviction was reversed, the trial court having erred in 
        receiving in evidence subpenas which were based ultimately on 
        the fruits of an illegal search and seizure.
            See also 101 Cong. Rec. 10916, 84th Cong. 1st Sess., July 
        19, 1955, for the voice vote approval of S. Res. 135, citing 
        Eugene C. James in contempt for refusing to produce subpenaed 
        materials and answer questions; and 99 Cong. Rec. 8883, 8884, 
        83d Cong. 1st Sess., July 15, 1953, for the voice vote approval 
        of S. Res. 139, citing Timothy J. O'Mara in contempt for 
        refusing to produce subpenaed materials and answer questions.
            In United States v O'Mara, 122 F Supp 399 (1954), the 
        defendant was convicted, the court having found, in part, that 
        information sought was pertinent to the inquiry.
---------------------------------------------------------------------------

      Citation of Alan and Margaret McSurely for Contempt of Congress

        The resolution (S. Res. 191) citing Alan and Margaret McSurely 
    for contempt of Congress was considered and agreed to, as follows:

                                  S. Res. 191

            Resolved, That the President of the Senate certify the 
        report of the Com

[[Page 2449]]

        mittee on Government Operations of the United States Senate on 
        the appearance of Alan McSurely and Margaret McSurely before 
        the Senate Permanent Subcommittee on Investigations of the 
        Committee on Government Operations on March 4, 1969, in 
        Washington, District of Columbia, at which they--
            (1) refused to produce books and records lawfully subpenaed 
        to be produced before the said subcommittee, and
            (2) failed to appear or to produce the said books and 
        records pursuant to the order and direction of the chairman 
        with the approval of the subcommittee before noon on March 7, 
        1969, together with all the facts in connection therewith, 
        under the seal of the United States Senate, to the United 
        States Attorney for the District of Columbia, to the end that 
        the said Alan McSurely and Margaret McSurely may be proceeded 
        against in the manner and form provided by law.



 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                   D. AUTHORITY IN CASES OF CONTEMPT
 
Sec. 21. Purging Contempt

    As the following precedents reveal, a witness may be purged of, or 
freed from, contempt under procedures parallel to those used in citing 
for contempt: submission of a report of the committee and approval of a 
resolution authorizing the Speaker to notify the U.S. Attorney to drop 
the prosecution. (8)
---------------------------------------------------------------------------
 8. See 3 Hinds' Precedents Sec. Sec. 1670, 1682, 1684, 1686, 1687, 
        1689, 1692, 1694, 1701, 1702, for earlier precedents relating 
        to purgation.
---------------------------------------------------------------------------

    Courts have not been sympathetic to witnesses' contentions that 
they have purged themselves. For example, an argument that an unexcused 
withdrawal from a hearing did not obstruct a committee's inquiry 
because the witness returned later and answered all questions put to 
him was held irrelevant, because a witness does not have a legal right 
to dictate the conditions under which he will testify.(9) In 
fact, a witness' offer of proof that he had purged himself by 
testifying freely before another Senate committee and by opening union 
files to its scrutiny was rejected on the ground that the defense of 
purging in criminal contempt has been abolished in the federal 
courts.(10) A court may, however, suspend the sentence of a 
witness convicted of violating 2 USC Sec. 192 and give him an 
opportunity to avoid punishment by giving testimony before a committee 
whose questions he had refused to answer.
---------------------------------------------------------------------------
 9. United States v Costello, 198 F2d 200 (2d Cir. 1952), cert. denied, 
        344 U.S. 874 (1952).
10. United States v Brewster, 154 F Supp 126, 135 (D.D.C. 1957), 
        reversed on other grounds, 255 F2d 899 (D.C. Cir. 1958), cert. 
        denied, 358 U.S. 842 
        (1958).
---------------------------------------------------------------------------

Report

Sec. 21.1 The Committee on UnAmerican Activities reported

[[Page 2450]]

    to the House testimony purging a witness who had been cited for his 
    previous refusal to testify and recommended that legal proceedings 
    against the witness be terminated.

    On July 23, 1954,(11) a report purging a witness of 
contempt was presented and read.(12)
---------------------------------------------------------------------------
11. 100 Cong. Rec. 11650, 83d Cong. 2d Sess.
12. See  Sec. 21.2, infra, for the resolution purging Mr. Crowley, and 
        100 Cong. Rec. 6400, 6401, 83d Cong. 2d Sess., May 11, 1954, 
        for the texts of H. Rept. No. 1586, relating to the refusal of 
        Mr. Crowley to testify, and H. Res. 541, authorizing the 
        Speaker to certify that report to the U.S. Attorney for legal 
        action.
---------------------------------------------------------------------------

                   In The Matter of Francis X. T. Crowley

        Mr. [Harold H.] Velde [of Illinois]: Mr. Speaker, by direction 
    of the Committee on Un-American Activities, I submit a privileged 
    report (Rept. No. 2472).
        The Clerk read as follows:

                     In the Matter of Francis X. T. Crowley

            Mr. Velde, from the Committee on Un-American Activities, 
        submitted the following report:
            The Committee on Un-American Activities, as created and 
        authorized by the House of Representatives, through the 
        enactment of Public Law 601, section 121, subsection (q) (2) of 
        the 79th Congress, and under House Resolution 5 of the 83d 
        Congress, caused to be issued a subpena to Francis X. T. 
        Crowley, 226 Second Avenue, apartment 15, New York, N. Y. The 
        said subpena directed Francis X. T. Crowley to be and appear 
        before said Committee on Un-American Activities, of which the 
        Honorable Harold H. Velde is chairman, on May 4, 1953, at the 
        hour of 10:30 a.m., then and there to testify touching matters 
        of inquiry committed to said committee, and not to depart 
        without leave of said committee.
            The said Francis X. T. Crowley did appear before said 
        committee and did refuse to answer questions pertinent to the 
        subject under inquiry, and his refusal to answer said pertinent 
        questions deprived your committee of necessary and pertinent 
        testimony and placed the said witness in contempt of the House 
        of Representatives of the United States.
            In Report No. 1586, 83d Congress, 2d session, your 
        committee reported to the House of Representatives the said 
        actions of Francis X. T. Crowley. On May 11, 1954, the House of 
        Representatives adopted by vote of 346 to 0, House Resolution 
        541, which is set forth in words and figures 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 Francis X. T. Crowley to answer questions before the 
        said Committee on Un-American Activities, 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 X. T. Crowley may 
        be proceeded against in the manner and form provided by law.''
            On June 28, 1954, the said Francis X. T. Crowley did appear 
        voluntarily before your committee in public session in 
        Washington, D.C., and did

[[Page 2451]]

        answer all questions which he had previously refused to answer. 
        In addition, the said Francis X. T. Crowley voluntarily did 
        give your committee extensive information concerning the 
        operation of the Communist conspiracy in the United States of 
        America.
            At the conclusion of the testimony of the said Francis X. 
        T. Crowley before your committee on June 28, 1954, the 
        chairman, Hon. Harold H. Velde, made a statement which is set 
        forth in words as follows: . . .
            ``Mr. Velde. May I say that we certainly do appreciate the 
        information you have given here voluntarily to the committee.
            ``As I mentioned before the committee would not be 
        authorized as a body to ask for immunity from prosecution for 
        you. However, I do feel that many of the members of the 
        committee, probably a big majority, feel that you have 
        performed a service to your country by giving us the 
        information that you have, and that would possibly be a good 
        reason why the Attorney General should drop prosecution in your 
        particular case for contempt.
                     *      *      *      *      *

            ``Mr. Velde. The witness is excused with the committee's 
        thanks.''
            Because of the foregoing, on July 16, 1954, your committee 
        voted that it was the sense of the committee that the said 
        Francis X. T. Crowley, because of his voluntary answers to 
        pertinent questions before the committee and the extensive 
        voluntary information he offered concerning the operation of 
        the Communist conspiracy in the United States of America, did 
        purge himself of contempt of the House of Representatives of 
        the United States.

Resolution

Sec. 21.2 The House debated and approved a resolution purging the 
    contempt of a witness who had previously refused to testify before 
    the Committee on Un-American Activities.

    On July 23, 1954,(13) the House debated and approved a 
resolution authorizing the Speaker to certify to the U.S. Attorney a 
report purging a witness of contempt.(14)
---------------------------------------------------------------------------
13. 100 Cong. Rec. 11650-52, 83d Cong. 2d Sess. See also Sec. 21.3, 
        infra, for the Speaker's announcement that he had certified the 
        purgation and Sec. 21.4, infra, for the U.S. Attorney's 
        statement that the prosecution would be dropped.
14. See Sec. 21.1, supra, for the report on this matter and 100 Cong. 
        Rec. 6400, 6401, for the texts of H. Rept. No. 1586, relating 
        to the refusal of Mr. Crowley to testify, and H. Res. 541, 
        authorizing the Speaker to certify the report to the U.S. 
        Attorney for legal action.
---------------------------------------------------------------------------

        Mr. [Harold H.] Velde [of Illinois]: Mr. Speaker, I offer a 
    resolution (H. Res. 681) 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 concerning the action of 
        Francis X. T. Crowley in

[[Page 2452]]

        purging himself of contempt of the House of Representatives of 
        the United States, 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 legal proceedings based upon the matter certified by the 
        Speaker pursuant to H. Res. 541, 83d Congress, second session, 
        against the said Francis X. T. Crowley may be withdrawn and 
        dropped in the manner and form provided by law.

        Mr. Velde: Mr. Speaker, I yield such time as he may desire to 
    the gentleman from California [Mr. Jackson].
        Mr. [Donald L.] Jackson [of California]: Mr. Speaker, on May 
    11, 1954, the House adopted by a vote of 346 to 0, House Resolution 
    541 citing Francis X. T. Crowley for contempt of Congress. On June 
    28, 1954, Mr. Crowley again appeared before the House Committee on 
    Un-American Activities at his own request and answered all 
    questions, giving the Congress and the committee extensive 
    information relative to his activities and those of others in the 
    Communist Party.
        The action here proposed, while not without precedent, is most 
    unusual, in that the House Committee on Un-American Activities is 
    today asking the House to concur in a committee recommendation that 
    a witness who was previously cited by the House for contempt, and 
    in the light of subsequent cooperation with the committee, be 
    purged of that contempt.
        It is the sense of the committee that Mr. Crowley should be 
    purged of contempt. However, Mr. Speaker, I should like to 
    emphasize one important point relative to Francis X. T. Crowley. 
    When the witness refused originally to testify before the committee 
    and later came back to testify, it is our clear understanding that 
    he was acting upon his own initiative. He came back to testify on 
    his own volition. He was not acting in furtherance of any 
    conspiracy. He was not attempting to impede legitimate 
    congressional investigations, in the opinion of the committee.
        The committee wants it clearly understood that its unusual 
    action today in recommending that Francis X. T. Crowley be 
    considered as having purged himself of contempt must not be 
    considered as a precedent for any witness to commit contempt on one 
    day and attempt to purge himself of the charge on the next. In such 
    case, a witness would thereby be able to select the time and place 
    of giving his testimony. A congressional committee is entitled to 
    testimony when and where it deems it necessary and proper to have 
    that testimony. The power to decide when and where one shall 
    testify is not properly, under the law, in the hands of a witness. 
    The Crowley case is no precedent for any such interpretation.
        It must further be remembered that Mr. Crowley came back 
    voluntarily before the committee, and was promised nothing in the 
    way of any remuneration, reward, or forgiveness. He understood that 
    he was promised nothing and that he testified freely of his own 
    will because he desired strongly so to testify.
        It is the hope of the committee that the House will accept the 
    recommendation that Mr. Crowley be purged of contempt in this 
    instance.
        Mr. [James G.] Fulton [of Pennsylvania]: Mr. Speaker, will the 
    gentleman yield?

[[Page 2453]]

        Mr. Jackson: I yield to the gentleman from Pennsylvania.
        Mr. Fulton: If the House adopts this recommendation as a 
    practice, and leaving this particular case out of it, will it not 
    weaken the Committee on Un-American Activities? Will not witnesses 
    who become the defendants in these citations for contempt 
    proceedings feel that they have up until the time they are brought 
    into court to change their minds? If the committee adheres to a 
    rule that the witnesses are required to come before the Un-American 
    Activities Committee in the beginning and testify, will it not 
    expedite the committee's hearings, instead of waiting for the 
    defendant to turn milk toast later on?

        Mr. Jackson: It would simplify matters a great deal if we could 
    adopt a rule that would require them to testify in their first 
    appearance. If that could be achieved, there would be no need for 
    contempt proceedings in the House. However, there are instances 
    where it is believed that a witness in good faith, through 
    misunderstanding of the circumstances, or upon poor advice, refuses 
    to testify. Mr. Crowley, following his appearance here, went to a 
    priest, who recommended that he return to the committee and tell 
    the full truth. He did so. I have tried to point out in my remarks, 
    I will say to the gentleman from Pennsylvania, that the committee 
    is not establishing, and wants it clearly understood that this is 
    not to be considered as establishing, any precedent relative to 
    purge of contempt.
        Mr. Fulton: Would the gentleman permit me to ask another 
    question?
        Mr. Jackson: Surely.
        Mr. Fulton: When a person is cited and becomes a defendant in a 
    case before the United States district court, is it within our 
    power, our discretion, or our jurisdiction in the House then to 
    withdraw the citation? Why does not the gentleman who has been 
    cited by the Un-American Activities Committee for contempt, and who 
    refused to answer questions on his subversive activities for the 
    overthrow of the United States Government, go to the proper 
    authorities on the judicial side and say that he has now changed, 
    although he committed the offense, and ask that this later 
    repentance and change of mind be taken in mitigation of what the 
    penalty might be? The point is this: Are we in the House 
    responsible for relieving such a cited individual of all penalty, 
    or should he go to the Attorney General, to whom this citation has 
    been referred, and the judiciary, to get the penalty mitigated, now 
    that he has changed his mind?
        Mr. [Francis E.] Walter [of Pennsylvania]: Mr. Speaker, will 
    the gentleman yield?
        Mr. Jackson: I yield to the gentleman from Pennsylvania.
        Mr. Walter: I think it is important to understand that in this 
    particular case we are just where we were after the vote to cite 
    this man was taken. No further steps have been taken. The matter 
    has not been presented to the grand jury. There has been no 
    indictment, so that we are still in control of this entire 
    situation.
        Mr. Fulton: Then will the committee at this juncture limit this 
    type of case to the jurisdiction where it has still the actual 
    control of the citation as in this situation? Once the citation

[[Page 2454]]

    is handed over into the hands of a United States attorney, I 
    believe it should be the United States attorney that goes before 
    the court and asks for the mitigation or the dismissal.
        Mr. Walter: I am quite certain that the United States attorney 
    does not know anything about this case. It has been referred to the 
    Department of Justice, but I do not believe the matter has gone to 
    the United States attorney. Further, this is an unusual case in 
    this, that this man realized after he searched his soul and 
    conscience that he had done something injurious to his country, and 
    he convinced us that he was willing and anxious to cooperate with 
    the work the Congress of the United States has imposed upon this 
    committee. It is entirely a bona fide, genuine action on the part 
    of this man. I do not believe in the light of these circumstances 
    he should be put to the trouble and expense of defending an action 
    even though ultimately the United States attorney would recommend 
    leniency.
        Mr. Jackson: May I say to the gentleman it is my understanding 
    that the Attorney General's office and the United States attorney's 
    office are in accord with the action that is here proposed.
        Mr. Velde: Mr. Speaker, will the gentleman yield?
        Mr. Jackson: I yield to the gentleman from Illinois.
        Mr. Velde: Let me point out, too, that this witness was not a 
    vicious and physically contemptuous witness. He felt within his 
    conscience, at least we members of the committee felt that he had 
    it within his conscience, that he should refuse to answer certain 
    questions. I certainly would not indiscriminately recommend that 
    all these witnesses who come forward after being cited be purged by 
    the House of Representatives. I think you can depend upon the 
    members of our Committee on Un-American Activities, who voted 
    unanimously to submit this resolution, to take those cases where it 
    seems it is proper to make the purge or to ask for a purging 
    resolution.
        Mr. Jackson: I thank the gentleman. I might say that we are 
    frequently belabored in some quarters for being unduly harsh. I 
    believe the adoption of this resolution will indicate that the 
    committee is trying its best to be fair and just
        Mr. [Kit] Clardy [of Michigan]: Mr. Speaker, will the gentleman 
    yield?
        Mr. Jackson: I yield to the gentleman from Michigan.
        Mr. Clardy: Is it not true that this witness when he came 
    before us was a more or less confused young man who did not raise 
    the fifth amendment, did not raise any of the amendments, but 
    merely had a mistaken belief that by cooperating with the committee 
    he would be violating something that was within his conscience, 
    unlike most of those who come before the committee, and that we 
    thought the spirit of Christian charity ought to prevail in this 
    case because it was perhaps the first and maybe the last and only 
    instance in which we would find a man of that character coming 
    before us?
        Mr. Jackson: Yes. I sensed that to be the feeling of the 
    committee in this connection.
        Mr. Clardy: After he had appeared the first time he became 
    married, he consulted with his wife, he consulted

[[Page 2455]]

    with his priest, he consulted with his friends, and finally he came 
    back before us, because he was in his conscience convinced he could 
    do his country a service. I would hate to see the House turn down 
    this one case.
        Mr. Jackson: I am inclined to think, if we give the House a 
    chance, it will vote this resolution.
        Mr. Fulton: If the gentleman will yield, I want to ask the 
    chairman of the Un-American Activities Committee a question. I may 
    be pressing the point, but this is establishing a precedent which 
    will be followed hereafter. I cannot accept the ground that maybe a 
    member of the committee thought this was being done in charity. I 
    would therefore ask the chairman of the Committee on Un-American 
    Activities to state expressly the rule that will be followed by the 
    Un-American Activities Committee in cases where there is a change 
    of mind and the witness decides he will purge himself of this 
    contempt after he has been cited by the House in accordance with 
    the Un-American Activities Committee's own recommendations. I would 
    like that stated right here for a precedent on the first one that 
    comes up, so that there is a precedent and a rule for future cases.
        Mr. Velde: The gentleman knows it is impossible for me to say 
    what the committee will do under any of these circumstances. I am 
    sure they will be reasonable. On top of that the House of 
    Representatives is not establishing a precedent in the sense that 
    it is a legal precedent established by the Supreme Court. The House 
    of Representatives can vote on any of these resolutions as they see 
    fit.
        Mr. Speaker, I move the previous question.
        The previous question was ordered.
        The Speaker: (15) The question is on the resolution.
---------------------------------------------------------------------------
15. Joseph W. Martin, Jr. (Mass.).
---------------------------------------------------------------------------

        The resolution was agreed to.
        A motion to reconsider was laid on the table.

Certification of Purgation

Sec. 21.3 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,(16) 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, House Report No. 
2472, purging Francis X. T. Crowley of contempt.
---------------------------------------------------------------------------
16. 100 Cong. Rec. 12023, 12024, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

                           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:

[[Page 2456]]

           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.(17)
---------------------------------------------------------------------------
17. See Sec. 21.2, supra, for the text of H. Res. 681, and Sec. 21.4, 
        infra, for the response of the U.S. Attorney.
---------------------------------------------------------------------------

U.S. Attorney's Response

Sec. 21.4 The Speaker laid before the House the U.S. Attorney's 
    affirmative response to a resolution requesting withdrawal of 
    contempt proceedings against a person who had purged himself of 
    contempt by cooperating with a committee.

    On Aug. 9, 1954,(18) Speaker Joseph W. Martin, Jr., of 
Massachusetts, laid before the House a letter from the U.S. Attorney 
for the District of Columbia.(19)
---------------------------------------------------------------------------
18. 100 Cong. Rec. 13734, 83d Cong. 2d Sess.
19. See Sec. Sec. 21.1 and 21.2, supra, for the texts, respectively, of 
        H. Rept. No. 2472, purging Mr. Crowley of contempt, and H. Res. 
        681, authorizing the Speaker to certify the report. See also 
        100 Cong. Rec. 6400, 6401, for the texts of H. Rept. No. 1586, 
        relating to the original refusal to testify, and H. Res. 541, 
        authorizing the Speaker to certify that report to the U.S. 
        Attorney.
---------------------------------------------------------------------------

                 Proceedings Against Francis X. T. Crowley

        The Speaker laid before the House the following communication:

                                                 August 5, 1954.
            Hon. Joseph W. Martin, Jr.,
            Speaker of the House of Representatives, Washington, D.C.

            In re Francis X. T. Crowley, cited for contempt of the 
        House by House Resolution 541, 83d Congress.
            Dear Mr. Speaker: On May 12, 1954, pursuant to House 
        Resolution 541, 83d Congress, you certified to me the contempt 
        of the above individual for refusing to answer questions before 
        the Committee on Un-American Activities on June 8, 1953.
            On July 23, 1954, that committee by Report No. 2472, 
        reported that Crowley on June 28, 1954, appeared voluntarily 
        before it in public session and answered all questions which he 
        had previously refused to answer and, in addition, voluntarily 
        gave extensive information concerning the operation of the 
        Communist conspiracy in this country. That committee further 
        reported that it was the sense of the committee that Crowley 
        had thereby purged himself of his previous contempt of the 
        House of Representatives.
            House Resolution 681 of July 23, 1954, resolved that the 
        Speaker certify to the United States attorney House Report No. 
        2472, referred to above, ``to the end that legal proceedings 
        based upon the matter certified by the Speaker pursuant to 
        House Resolution 541, 83d Congress, 2d session, against the 
        said Francis X. T. Crowley may be withdrawn and dropped in the 
        manner and form provided by law.''
            In my opinion this action by the committee and by the House 
        has the effect of withdrawing the original citation of Crowley 
        to my office and of relieving me of the statutory duty to put 
        the matter before the grand jury, as provided by title 2, 
        United States Code, section 194.
            Inasmuch as Crowley has purged himself, and in view of the 
        wish of the House, expressed in House Reso

[[Page 2457]]

        lution 681, that contempt proceedings against Crowley be 
        dropped, I shall not present the matter to the grand jury and I 
        shall close the prosecution on my records.
              Sincerely,
                                                   Leo A. Rover,

                                           United States Attorney.

            (Copy to Hon. Harold H. Velde, chairman Committee on Un-
        American Activities, House of Representatives, Washington, 
        D.C.)

Sec. 21.5 The U.S. Attorney, in response to a letter received during an 
    adjournment informing him that a witness who had been cited by the 
    House for contempt had later purged himself, advised the Speaker by 
    letter that he would not present the contempt to the grand jury and 
    would close the prosecution on his records.

    On Mar. 10, 1955,(20) the following item appeared in the 
Congressional Record.
---------------------------------------------------------------------------
20. 101 Cong. Rec. 2659, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

                       Executive Communications, Etc.

        Under clause 2 of rule XXIV, executive communications were 
    taken from the Speaker's table and referred as follows:

            527. A letter from the United States Attorney, District of 
        Columbia, Department of Justice, relative to a letter addressed 
        to Hon. Francis Walter, chairman, committee on Un-American 
        Activities of the House of Representatives, relating to the 
        case of Wilbur Lee Mahaney, Jr., cited for contempt of the 
        House of Representatives by House Resolution 535, 83d Congress; 
        to the Committee on Un-American Activities.(1)
---------------------------------------------------------------------------
 1. See 100 Cong. Rec. 6386-89, 83d Cong. 2d Sess., May 11, 1954, for 
        the texts of H. Rept. No. 1580, citing Mr. Mahaney for contempt 
        for refusal to testify, and H. Res. No. 535, authorizing the 
        Speaker to certify to the U.S. Attorney the report, 
        respectively.
            Parliamentarian's Note: This letter was not laid before the 
        House; an adjournment prevented action on a resolution 
        certifying the purgation.
            See Sec. Sec. 21.1, 21.2, and 21.4, supra, for the texts of 
        a report purging a witness, a resolution authorizing the 
        Speaker to certify the purging report to the U.S. Attorney, and 
        the response of the U.S. Attorney in the case of Francis X. T. 
        Crowley, respectively, when the House was able to receive and 
        act on the committee report because it was in session.
---------------------------------------------------------------------------

    Parliamentarian's Note: In a letter dated Mar. 3, 1955, the U.S. 
Attorney for the District of Columbia, Leo A. Rover, informed the 
Chairman of the Committee on Un-American Activities of the 84th 
Congress, Francis E. Walter, of Pennsylvania, that he would drop legal 
action against Wilbur Lee Mahaney, Jr., because the former chairman, 
Harold H. Velde, of Illinois, had by letter indicated that it was the 
sense of the committee that the witness had purged himself. The body of

[[Page 2458]]

the U.S. Attorney's letter to Chairman Walter follows:

        By letter dated December 30, 1954, the Honorable Harold H. 
    Velde, Chairman, Committee on Un-American Activities of the House 
    of Representatives, informed me that on November 28, 1954, the 
    Committee voted that it was the sense of the Committee that 
    Mahaney, on July 30, 1954, had purged himself of the contempt 
    theretofore committed by him in refusing to answer questions on 
    February 16, 1954, for which refusals Mahaney had been cited for 
    contempt by the House of Representatives on May 11, 1954.
        In the letter of December 30, 1954, Chairman Velde stated that 
    the report and statement of Mahaney's purge were being forwarded to 
    this office to the end that legal proceedings on the contempt 
    citation against Mahaney may be withdrawn and dropped.
        Mr. Velde further stated that the report and statement were 
    being forwarded directly by the Chairman of the Committee inasmuch 
    as the House of Representatives was adjourned. It is my 
    understanding that the Speaker of the House was out of the city and 
    unavailable to receive and transmit the report and statement to 
    this office as is provided by 2 U.S.C. 194 for citations of 
    contempt when Congress is not in session.
        It appears, under these circumstances, that this action by the 
    Committee may be regarded as having the effect of withdrawing the 
    original citation of Mahaney to my office and of relieving me of 
    the statutory duty to put the matter before the grand jury, as 
    provided by 2 U.S.C. 194.
        Inasmuch as Mahaney has been considered by the Committee as 
    having purged himself, and in view of the wish of the Committee 
    expressed by Committee in the aforementioned letter of its 
    Chairman, that contempt proceedings against Mahaney be dropped, I 
    shall not present the matter to the grand jury and I shall close 
    the prosecution on my records.
        For your information, I do not propose to give notification of 
    this action to Mahaney.



 
                               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.
---------------------------------------------------------------------------
 2. 2 USC Sec. 94. See 3 Hinds' Precedents Sec. Sec. 1672, and 1691 for 
        earlier precedents relating to certification.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    Failure to make a report or issue a certificate has been held to be 
a matter to be raised by way of defense.(8)
---------------------------------------------------------------------------
 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).

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

[[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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
11. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
13. See Sec. 22.1, supra, for the procedure for authorizing a 
        certification of a report received when Congress is in session.
---------------------------------------------------------------------------

                    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
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
16. 90 Cong. Rec. 8163, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

                    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)
----------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------
 3. 100 Cong. Rec. 12023, 12024, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

                           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)
---------------------------------------------------------------------------
 4. 369 F2d 198 (D.C. Cir. 1966).
 5. 2 USC Sec. 194.
---------------------------------------------------------------------------

            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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