[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]]
---------------------------------------------------------------------------
Commentary and editing by Thomas J. Nicola, J.D.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
3. Watkins v United States, 354 U.S. 178, 187 (1957).
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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.
-------------------------------------------------------------------------
[[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)
------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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.
-------------------------------------------------------------------------
[[Page 2282]]
concurrent resolution,(20) or rule of the
House.(1)
-------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
14. 118 Cong. Rec. 3181-3200, 92d Cong. 2d Sess. The resolution was
reported on May 19, 1971 (H. Rept. No. 218).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
15. Carl Albert (Okla.).
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
16. 119 Cong. Rec. 2812-16, 93d Cong. 1st Sess. The resolution was
reported on Jan. 30, 1973 (H. Rept. No. 2).
---------------------------------------------------------------------------
[[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)
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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].
---------------------------------------------------------------------------
[[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.
---------------------------------------------------------------------------
[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
17. See Sec. 22.2 supra, which states that no action of the House is
necessary in this situation.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
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].
----------------------------------------------------------------------------
[[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].
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
[[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.